HC Deb 30 April 1842 vol 62 cc1333-57
Mr. Thesiger

wished, before proceeding to address the House on a subject of very great importance, to be permitted to say a few words in order to set himself right in the opinion of the House with respect to the course which he had pursued on the present occasion. It was attributed to him, in the progress of the debate that morning, that he had taken some advantage of the House in introducing this grave and serious question as he had done —that he had brought it forward at an hour when many Members had gone away not expecting that the discussion would come on, and that he had, in that way, taken the House by surprise. It was with considerable pain and regret he had heard such an imputation cast on him from that (the Ministerial) side of the House; because he thought that the course which he had taken was so well known to many of his hon. and right hon. Friends near him, that they would at once have acquitted him of so serious a charge—a charge that had left a very painful impression on his mind—since it proceeded on the supposition that be could be capable of dealing unfairly with the House. When he came down to the House yesterday, he had made up his mind to give notice of a motion for the discharge of Mr. Mabson from custody; but he found that the hon. Member for Knaresborough (Mr. Ferrand) had previously given notice of a similar motion. He mentioned to the hon. Member for Knaresborough his intention of making a motion on the subject, and the result was, that that hon. Member very courteously permitted him to substitute his own name for that of the hon. Member. Soon afterwards he stated to the Speaker his intention of opposing the motion of adjournment till Monday, in order that the House might meet this day, for the purpose of deciding whether the custody of this individual was legal or not. He also communicated his determination to the Chancellor of the Exchequer, to one of the Secretaries of the Treasury, and he believed, also, to the Secretary of State for the Home Department. The Chancellor of the Exchequer told him, that such a proposition would probably lead to a debate which might prevent the House proceeding with that very important measure, the Income-tax, and, therefore, the right hon. Gentleman requested him to defer proceeding until after the debate on that subject was concluded, when the adjournment until Monday would be moved. He had also, through the medium of an hon. Friend, communicated his intention to several Members on the opposite side of the House. So that he had done everything in his power to make his intention known. He was, therefore, astonished, that he did not find any Gentleman, when he was accused of having taken the House by surprise, rising in his place and vindicating the course which he had pursued. With respect to an observation that had fallen from the hon. Member for Chester (Mr. Jervis), that the notice of motion contained the word "Monday," that had happened by mistake, for he desired the clerk to strike out "Monday," which he said he would do when the motion was made. He felt it due to himself to make these few observations in his own vindication previous to going into this grave and serious question. In the discussion which had occurred on the previous night as to the continuance in custody of this individual, he confessed that he might have expressed himself with an undue degree of warmth. He felt very strongly on the subject of the validity of the warrant. He felt that the House was committing a grievous injustice towards this individual by continuing him in custody upon a warrant which appeared to be illegal, and he, therefore, had expressed himself very strongly on that point: but having then accomplished his object, which was to assemble the House as early as possible for a grave and calm consideration of that question, he might be permitted to apologise for any warmth into which he might have been betrayed, and to call upon the House, with him, to consider, with all the calmness that befitted the dignity and importance of the subject, the grave and serious question now brought before them for discussion. On the one hand, they had the long-continued practice of the House, which was, of course, entitled to their respect. On the other, they had to deal with the liberty of a fellow-subject, and they must take care that that liberty was not improperly infringed upon, and that the person complaining was not continued in custody beyond the period which was absolutely necessary to determine the fact, whether such custody was or was not improper—whether the warrant under which he was committed was or was not valid. With these remarks he would proceed to consider the question which had been submitted to the House. He apprehended that they could have nothing to do, on this occasion, with the question as to what had been the ordinary force of these warrants, except so far as to be cautious that they did not supersede or impugn any practice or any rule of that House, unless upon good and sufficient grounds; but, provided, that that practice had been illegal, although long acted upon, he was quite sure the House would feel that it was absolutely necessary, at the earliest possible period, that their attention should be called to the subject for the purpose of discontinuing the practice. Nor did he consider, on the present occasion, that it would be at all necessary to introduce into the discussion anything regarding the proceedings of the Southampton election committee, or the behaviour of the witness before that committee or before the House. Different opinions might be entertained on that subject. Some hon. Members might think, that the witness had exhibited a disposition to conceal the truth, which would make him a fit subject for punishment, while others might believe that he meant justly and fairly to state everything that he knew regarding the subject-matter before the committee. But, whatever opinion Gentlemen might entertain on the subject, the House were not, at present, required to enter into a discussion upon that point. He contended, that the conduct of the prisoner was not what they had then to consider. They were not there to exercise any discretion on the subject, or to consider whether the conduct of this individual deserved punishment or not. He wished to call the attention of the House to the validity of the warrant under which the alleged contempt arose. He wished to point out to the House the view he had taken, after the most anxious consideration, of the warrant under which this party was supposed to be compelled to attend before a committee of the House of Commons assembling in the present Session of Parliament, and which, he contended, was not a valid or even an existing warrant for that purpose. Therefore, there could not be a contempt committed by the witness in refusing to produce certain papers that were specified in the warrant—that instrument being itself invalid. It might be useful if he first called the attention of the House to the form of the warrant itself on which the question arose. It was dated the 10th of September, 1841, which hon. Members might recollect was in the last Session of Parliament. It recited, Whereas a petition had been presented complaining of an undue election and return for the town and county of Southampton to the House of Commons, the matter of which petition is to be tried in the present Session of Parliament, by a select committee appointed under the act of the 4th and 5th year of her present Majesty. We, therefore, require (amongst others) William Rous Mabson, and each and every person herein named, to bring in their custody all letters, accounts, &c. Using, observed the hon. and learned Gentleman, general words, sufficient to include the book of counterfoils and checks which had been mentioned, And therewith to be and appear before the said select committee, and to receive such further orders as such select committee should determine and decide. Now, he was informed, that warrants formerly required the parties to appear on the day on which the election committee was to be struck, and to attend, day by day, under the orders of the House. The consequence of this form was, that parties were in the habit of attending on the day when the committee was struck, and were thus subjected to great expense by continuing their attendance in London from day to day. Very frequently notice was given, that their attendance would not be required for the present, and they were, consequently, discharged, and new warrants were applied for, which were issued by the Speaker, to compel their attendance at the particular period when their appearance would be wanted. In order to obviate the manifest inconvenience, and expense of this onerous attendance of witnesses when they were not wanted, the form at present in question had been devised. That form might be an extremely good one to compel the attendance of parties during the Session of Parliament to which the warrants applied, and in which they were drawn. It might be perfectly efficacious for that purpose, and yet might not be of the slightest validity to compel the attendance of parties in a subsequent Session. That was the question which the House had to determine—a question depending on the character of the warrant, and the authority from which it emanated, whether it was a warrant that proceeded from the authority of that House, and therefore, like all other Parliamentary orders and proceedings terminated with the end of the Session, or whether it was a statutable authority, which, therefore, would not terminate with the Session, but would be operative at a subsequent period. Prior to the Grenville Act, in 1770, that House was alone the tribunal to try contested elections. The Speaker, under the authority of the House, and by its order, issued his warrant to bring parties, papers, and records before the House, in order that the House might determine by the examination of witnesses, and the inspection of documents, whether any given election was good or bad. Of course, the inconvenience of that course was seriously felt; and the Grenville Act was passed in 1770, by which the House delegated its authority to a select committee, to be appointed at a particular day named, to try the merits of any given election petitions. Under that act, the committee had the power to summon persons, and to order the production of papers and records; and without that power, so conferred on them by statute, the committee would not have possessed any authority over the witnesses. That authority, thus given by the Grenville Act, was continued by subsequent statutes; and it was not until the 28th of George 3rd, that the warrant of the Speaker was first mentioned in the trial of any controverted election; and then it was mentioned, not as an authority given to the Speaker, but was recognised as an authority conferred on the Speaker by the House. It seemed, that by such authority, the Speaker was allowed to summon persons and to call for the production of papers and records, by the 28th of George 3rd, the 9th of George 4th, and the 4th and 5th of Victoria, the present act for the trial of election petitions. By all these statutes it appeared, that this authority was delegated to the Speaker by the House of Commons. The Speaker's warrant was not considered as being issued under the provisions of an Act of Parliament, but under an authority recognised by the statutes as proceeding from the House of Commons to the Speaker. Now, this was a most important consideration, and he wished to call the particular attention of the House to it, because on this distinction the great point of the question turned; since, if this were a mere authority proceeding from the House, its force must, like that of every other order of the House (with a few exceptions, which he should presently mention), terminate with the conclusion of the Session, and he should be able to show, by authority not to be disputed, that it could not be resumed or made available in any future Session, but that there must be a renewal of the authority. He would, in the first place, call the attention of the House to the second volume, p. 335, of Hatsell. He says:— The different effects of a prorogation and an adjournment were, that with regard to a prorogation, any bill or other proceeding not concluded at the end of one Session, in either House, in whatever stage it might be, was entirely put an end to, and must, in the next Session, be commenced again; whereas on an adjournment, every proceeding remained entire, and might after the recess be taken up where left at the time of the adjournment. Now, in a note to that page of Hatsell, to which he had referred, it would be found, that there were exceptions mentioned, such as cases of privilege; and the House would observe, by reference to the Journals, that where a breach of privilege had been committed in one Session, the House had, in a subsequent Session, resumed the consideration of that breach of privilege, and had punished the individual who had been guilty of it, but not without previously resuming the. consideration of the charge. It appeared to him, that this exception, which related to cases of breach of privilege, had no bearing ta all on the question before the House; because, before they decided, that there was a breach of privilege in this case, it must be shown, that the warrant with relation to which that alleged breach of privilege was committed, had full valid effect after the expiration of the Session of Parliament in which it was issued, and to which it expressly referred. He hoped, therefore, that the observations which he had made, would induce the House to hesitate before they came to any such conclusion as that the warrant issued in the last Session possessed its validity in the present. He apprehended, that such was not the fact; for it appeared to him, that at the conclusion of the last Session of Parliament, the warrant had exhausted its force, and had no power to compel the witness's attendance on the select committee. He should now briefly call the attention of the House to some great legal authorities on the subject, to which he wished particularly to refer his learned Friends who were conversant with legal questions. Without entering into detail, he would refer to the general result of the cases, as condensed in a passage to be found in 2nd Hawkins's Pleas of the Crown, cap. 15, sec. 54. It was there stated, A person committed for contempt by order of either House of Parliament might be discharged from the King's Bench, after the prorogation or dissolution of the Parliament; and that all matters before either House must be commenced anew in the next Parliament, after a prorogation, except in the case of a writ of error. To this be might add the case of an impeachment. Hawkins referred to seve-ral cases in illustration of his statement but the passage which he had quoted contained the substance. Now, it appeared to him, that the authorities had determined, that every order or proceeding connected with the privileges of the House (with the exception he had already mentioned) ended with the termination of the Session of Parliament. He would put the familiar ease of a person who was committed for contempt of the privileges of the House. Every person was perfectly aware, that the moment the Session terminated, in which the committal took place, there was an end of the imprisonment. The party was immediately entitled to be released. He would take another case; it frequently occurred, that in the course of the Session of Parliament, a motion was made, that a particular bill be read that day six months. Now, the object of such a motion was not to enable the House to carry on the proceedings with regard to that bill in the next Session of Parliament, supposing it to be assembled within six months, but the intention was to terminate the proceedings with reference to the bill in that Session, and to compel the parties supporting it, if they persevered, to renew the proceedings from the beginning, in the subsequent Session. If the new Session happened to commence within the six months, the bill could [not, in that Session, be taken up from the stage in which it stood when the motion for postponing it was made, but it would be necessary for the hon. Member who introduced it to begin de novo. He should now submit to the House, that the warrant of the Speaker was not a warrant issued under any statute, but proceeded wholly and entirely from the authority granted to the Speaker by that House. If he had succeeded in making out and sustaining that position, the result and conclusion were inevitable, that the force of the warrant in question was at an end at the termination of the last Session, and that the instrument bad no authority in the present Session to compel the attendance of the witness. The hon. Member for Devonport (Sir G. Grey) had, on a former occasion, quoted the act of the 4th and 5th of Victoria, and, as he understood, cited the 83rd section of that act as having the effect of continuing the validity of the Speaker's warrant in the present Session. [Sir G. Grey had not so argued.] He thanked the right hon. Baronet for setting him right. He could assure the right hon. Baronet, that be had no intention to misrepresent his argument, but so he at the time understood it. However it would be seen, on referring to the act, that the 83rd section could have no such effect. The 83rd section related to the continuance of proceedings actually begun before an election committee. After it had set forth the manner in which, and the time within which, the General Committee of Elections should appoint a select committee to try the matters of any petition complaining of an undue election or return for any county, city, or borough, it provided, that if Parliament— Happened to be prorogued before such committee had come to a determination, such committee should not be dissolved, and all the former proceedings of such committee should remain and be of the same force and effect, as if Parliament had not been prorogued. The House would observe, that this case came under the third branch of the section, if it touched it at all, which he contended that it did not. Here the warrant was issued in a former Session, but the committee was not struck until the present Session. Nothing whatever was done under that authority in the preceding Session. To him it was perfectly clear, that it did not apply to this case. He thought, therefore, that he might fairly be considered so far to have advanced in the argument as to have proved that this warrant was not a statutable authority, but an authority proceeding from that House, and, therefore, that it was placed in the same situation as all the other orders and proceedings connected with the privileges of the House, and that, like them, it came to an end on the termination of the Session. But he apprehended that the decision as to the propriety or impropriety of keeping this party in custody would not depend entirely on the decision which they might come to on this particular point; because, even if the House should be of opinion that this authority was a statutable one and had been conferred on the Speaker by an act of Parliament, the question would still remain whether the warrant, looking to its form, was such as would render the party disobeying it guilty of a contempt of the House. The warrant commanded the party on whom it was served "to attend before the select committee appointed to try the matters of a petition complaining of an undue election for the borough of Southampton in the present Session of Parliament." And he apprehended, with great submission to the House, that whatever might be the source from which the power to issue the warrant emanated, the manner in which it was framed was not such as to compel the attendance of the witness on whom it was served in the present Session of Parliament, seeing that the instrument was drawn up in the last Session, and had reference only to it. He would refer the House on this point, to what was the recognized practice of courts of law, sanctioned by long custom, under analogous circumstances. If a subpœna was served on an individual requiring his attendance at a particular sitting or assizes, if the cause was postponed, if it were for instance, made what was called a remanet, the party on whom the subpoena had been served could not be compelled, by any intimation given to him by the attorney or agent on the other side, to attend at any subsequent sitting or assizes under that subpoena. And why, he would ask, should there be a difference in that respect between the warrant of the Speaker and a subpœna issued in the course of proceedings in a court of law? He contended, that even if the Speaker's warrant were to be considered as a floating warrant, as it had been considered by some, still framed as it was, it could not compel the attendance of a witness in a totally different Session from that which was mentioned in the instrument. The hon. and learned Member for Bath (Mr. Roebuck) had alluded to the case of an individual bound over in recognizances to appear at the quarter sessions; but when a party attended on his recognizances, and was ordered to attend at another sessions, it was not a mere matter of course. There was a particular process to be gone through. In such a case, the recognizances of the individual must be respited from the sessions at which he bad appeared to the subsequent sessions at which he was expected to attend. Some act must be done to transfer the obligation of attending from one quarter sessions to another. His hon. and learned Friend the Member for Bath would forgive him for saying that the analogy to which he referred militated against his own position. There was another point to which he wished to allude, and which appeared to have made some impression on the minds of hon. Gentlemen on both sides of the House. He alluded to the circumstance of this individual being supposed to have waved any advantage that he might have derived from the invalidity of the warrant by his having chosen to appear before the committee. The question bad, no doubt, been raised in the first instance in the House, and had not been brought under the consideration of the committee by the very able counsel for the sitting Member, his learned Friend Mr. Austen; but he should observe that his learned Friend had had no opportunity of bringing that objection before the select committee before the party was in attendance. If, the party being in attendance, his learned Friend had said," I object to his answering any question because the warrant is not good," the chairman of the committee would immediately have answered, "We have nothing to do with your learned ar- gument as to the validity or invalidity of the warrant. We have the witness here before us; and whether he has appeared voluntarily or compulsorily, it is our duty to put such questions to him as we may think proper touching the petition the merits of which we have to try." It should also be observed, that the witness had not been committed for anything he had done before the committee, but was committed for refusing to produce certain documents, which, it was alleged, were in his custody when the warrant was issued. It was one thing to say, that a witness having attended voluntarily on the warrant or notice was compelled to answer, fairly and honestly, whatever questions might be put to him; and another thing to say, that coming before the committee, either voluntarily or on notice served upon him, he ought to be prepared to produce all the documents referred to in the Speaker's warrant of September last. That was perfectly clear. The distinction was surely quite evident. In his view of the case the party, though he came forward, might have remained at home, until the interposition of the Speaker by a new warrant or a summons from the chairman, who unquestionably had the right to send forth such a summons, called for his attendance; and certainly, under these circumstances he could not be considered in contempt by a supposed partial disobedience to the original warrant. He had now, as he conceived, fully and clearly stated the case. His desire was, to follow the wish of the House; for he was quite sure that their only anxious desire was to do justice to the individual whose case was under consideration. If they had taken any false step in this matter, he was convinced that they would recede from it as quickly as possible. If they acted without sufficient authority and had inflicted a wrong, they should redress the injury done without loss of time. He trusted that he had, with fairness and calmness and due deliberation, brought the subject before the House, under a sincere conviction of the validity of the argument which he had addressed to them—a conviction at which he had arrived before he had been able to consider the matter as fully as he had since done. He trusted that his opinion would, on examination, be found to be a correct one; and, at all events, he hoped that the House would, at the earliest moment, take this important matter into its serious consideration, and evince, as he was certain they would do, an anxious and earnest desire to do justice, not merely to this individual, but to every one of their fellow-subjects. He hoped that he should succeed in having full justice done, for that was infinitely more important, in his mind, than the result of the inquiry is to the validity of these warrants; and though sure of being correct in the conclusion he had come to, that was of little consequence in comparison with the injustice of detaining this individual. In conclusion, he begged leave to move, "That William Rous Mabson be discharged from the custody of the Serjeant-at-Arms."

Mr. C. Williams Wynn,

in seconding the motion, said, during the many years he had sat in that House he trusted he had never shown any want of application or care in preserving its due authority. He would not weary the House by going over the ground which had been so ably traversed by his hon. and learned Friend, but he concurred in the argument as to the invalidity of the warrant, and he would entreat the House to bear in mind that there was nothing more important, in order to the maintenance of the privileges and the authority of the House, than the legality and the regularity of its proceedings.

Mr. Redington

certainly would not attempt to enter into the learned arguments which had been so ably stated by the hon. Gentleman opposite; but he believed the House would agree with him, that the committee in this case had only made a proper and a legal use of the powers with which they had been intrusted. Undoubtedly, if the warrant were an illegal one this individual was entitled to the benefit of that illegality. With regard to the manner in which this question had been brought on, he really must say, that he thought the House had been taken by surprise, and the learned Member for Woodstock had omitted the only proceeding which would have been the proper and effective proceeding to render his intentions known; for the learned Gentleman, when he had given notice on the preceding evening of his intention to bring the subject before the House, might easily have stated that he meant to move the adjournment of the House for this day instead of Monday, according to the ordinary practice. There was one point to which he was persuaded the House would not deem it improper that he should advert. An expression had been made use of last night in reference to the proceedings of the committee, which, had he been present at the time, he should have repudiated in the strongest terms which the forms of that House would allow. That expression had been withdrawn, but were any such language again employed respecting the conduct of that committee, he should not hesitate to declare that a more gross and unfounded aspersion never had been cast on any seven sworn men, and he really must say that it would have been more consistent with that justice of which the learned Gentleman the Member for Woodstock surely ought not to be entirely oblivious, had he abstained from ex parte charges on a committee engaged in the discharge of its duties.

Mr. Thesiger

begged it to be understood that he should not have given the notice in the form in which he had couched it, had he not apprehended that such was its regular form.

Sir G. Grey

did not mean to impute to the hon. Member for Woodstock, that he had intentionally taken an unfair advantage, but he must say, that having heard at five o'clock last night the hon. Member give notice that he intended at the next meeting of the House to take the sense of the House, he was certainly under the impression, that the motion would have been made on Monday —the ordinary day. He thought the hon. Member ought to have stated, that at a late hour of the night he should move, that the House meet again on Saturday. It was quite accidentally that, casting his eyes over the votes, he perceived that the Speaker was to take the Chair at two o'clock to-day. He did not rise to follow the hon. and learned Gentleman through the whole of his learned speech, for he really did not think—and he said it with all deference to the House—that that House was a tribunal capable of judging of the legal arguments which might be made use of, or of the legal merits of the case now under their consideration. Grave doubts had been expressed on the subject of the warrant by the hon. and learned Gentleman, whose authority he thought entitled to great respect, and he was quite ready to admit, that means might be taken to ascertain whether those doubts were well-founded, and if so to provide a remedy for the evil. But were they then competent to decide the question? Notwithstanding all that had been said by the hon. and learned Gentleman opposite, and by the law officers of the Crown, he was not prepared, on the statement of any hon. Member, to assume that a practice which had existed for such a length of time was illegal. What he would venture, therefore, to suggest to the House was, not that they would entertain the present motion upon the ground, either of the legality or illegality of the warrant, but that they should decide whether or not the witness should be discharged upon the merits of the case. He would also suggest, that a notice of motion should be given on an early day for the appointment of a select committee to inquire as to what the practice of the House then was with regard to the issuing of summonses for the attendance of witnesses before committees, and that the committee should report whether any and what amendment of the law was requisite on that subject. He would propose, that the Speaker should give that committee the benefit of his experience; and the report of that committee would be a document on which the House might rely. With regard to the warrant, he was prepared to say, that it had not been proved to be illegal; but the question of its legality or illegality was one which could not then be decided. It would involve a reference to the Journals of the House for several years past, and he thought it might also involve a reference to the proceedings of the other House of Parliament. There were cases in which resolutions of the other House had been held to be binding beyond the Session; and he thought in cases somewhat analogous to the one which they were then engaged in considering. The necessary inference from the hon. and learned Gentleman's argument was, that every warrant issued since the beginning of the present Session by the Speaker, having been issued on the authority given in the Session of 1841, was invalid. If he understood the hon. and learned Gentleman's arguments right they were these, that the warrant rested not on statute, but on Parliamentary authority; that the authority given in the Session of 1841 had ceased with the termination of that Session; and that the warrants issued under such authority had also ceased to be valid. The result of such a doctrine being adopted would be, that other election petition warrants issued by the Speaker, summoning witnesses to give evidence before the respective committees, having been issued under circumstances similar to that in the Southampton case, would not be attended to by the witnesses; and was it a desirable result, he would ask, that those witnesses should be empowered to say, that they would not attend the committees, because the House of Commons had declared, that the Speaker's warrant issued in those cases was illegal? With regard to the merits of the case, he certainly was not prepared to dissent from the motion of the hon. and learned Gentleman (Mr. Thesiger) to discharge the witness from custody. It was admitted, that if the summons was not legal it was merely because there was a defect in the law; and he could not, therefore, feel much sympathy for this individual. If, in any suit at law, an individual had been informed that certain documents in his possession would be required for a trial in an ordinary court of justice, and had subsequently made away with those documents (even although he might not previously have received any warrant or summons to produce them), the party would, he apprehended, be liable to punishment for a wilful obstruction to the administration of justice. He would not advert to the conduct of the witness before the committee; he had no right to do so 5 but, looking at the evidence which he had given at the Bar, it appeared to him to amount to this, that he had possession of those documents—that he knew they would be wanted—and that he had parted with them, as he says incautiously; but, since the witness had stated, that he was willing to make inquiries as to the individual by whom he had sent these documents to Captain Ward, and as there was no suspicion that he would abscond, he thought it just, as he had been kept in confinement for three days, that he should now be discharged, but still liable to be called before the committee, still being bound to exert himself for the recovery of these papers, and bound to exonerate himself before the committee, and it might be, hereafter, before the House, from the charge of having wilfully got rid of the papers. If the motion for his discharge were rested upon those grounds, and not upon the ground of the illegality of the warrant, he would consent to it. He would not consent to declare that warrant illegal, but he would, as grave doubts seemed to be entertained on the subject, suggest that some course ought to be adopted similar to the one he had pointed out, for the purpose of setting the question at rest.

Mr. Ferrand

would not have trespassed upon the House, had it not been for the strong language that had been used by the hon. Gentleman opposite. The Speaker last night had told him, that he was out of order in making use of the language which he had used, and he had immediately withdrawn that expression. He had wished to call the attention of the House to the fact, that the person had been met with in London accidentally, that he had been taken before the committee without having any opportunity given him to go down to Southampton, and that it had been impossible for him to go down to search for the paper. He had heard with surprise the hon. Member for Gateshead assert, that the majority of the committee had reported the conduct of that man, and had directed, that he should be placed in the custody of the Sergeant-at-Arms, not for the purpose of procuring additional evidence from him, but as a punishment for the manner in which he had given his evidence. He felt, that in using the expression he had done, after that avowal of the hon. Member for Gateshead—

Mr. Hutt:

I rise to order, Sir. I feel, Sir, that the hon. Gentleman is not entitled to say, after having used the indecent expression—[" Order."]

The Speaker

The hon. Gentleman is clearly out of order in characterising any expression of an hon. Member in the House as indecent.

Mr. Hutt

Sir, I apologise to the House for having been so far carried away by the warmth of my feelings as to give utterance to an expression unworthy of my position as a Member of this House. I rise to order, Sir. It is evidently out of order for the hon. Gentleman opposite, after having made use of an expression with regard to the Southampton Election Committee, and after having been called to order by you for using that expression, and after having retracted that expression, to attempt now to justify it. If he has retracted—which I understand he has— the expressions which he applied last night, I presume he is not now to rise here in his place to justify them. I apprehend, that that was the line of argu- ment which the hon. Member was pursuing, if he did not use the very words; and as it appeared to me that such conduct was in the highest degree objectionable, I thought it my duty to call the hon. Gentleman to order.

The Speaker

The hon. Member for Knaresborough last night made use of a term for which I found it my duty to call him to order. He used the word "vindictive," but when that expression was withdrawn, no reflection should have been made upon it in any other form. If I could have ascertained, before the hon. Member concluded his sentence, that it was his intention to justify the expression he had before used, it would have been my duty, and I should certainly have found it necessary, to call him to order again. I am sure the hon. Gentleman will perceive, that no Member has a right to reflect upon the conduct of a committee which is sitting to decide a case upon authority delegated to it by the House.

Mr. Ferrand

said, that he sincerely regretted that he had used the language complained of last night. But be did not know whether it was necessary for him any further to justify the language he had used. He was not going to justify the word "vindictive," but he did think, that the hon. Member would allow him to say, that the language he had used was very extraordinary language for a member of a committee. [Mr. Hutt: What was it?] He had understood the hon. Member to make the very extraordinary assertion, that the committee had not confined the witness for the purpose of obtaining any further evidence from him.

Mr. Hutt

I did not say so.

Mr. Ferrand

So far as he remembered, that was the language used by the hon. Member.

Mr. Bernal

rose to order. He was sure the House and the hon. Member himself would perceive, that it would be highly injudicious and highly indecorous, that the time of the House should be wasted by repetitions of what had passed in former debates.

Mr. Ferrand

said, that he had first been attacked in very strong language, and he had only risen for the purpose of explaining. The hon. Member had at all events used very strong language towards him personally.

The Speaker

The hon. Member for Knaresborough acted most properly by retracting the expression he used last night. The hon. Member for Dundalk did not, this evening, as I understood him, attack the hon. Member for having used that expression. But the hon. Member for Dundalk said, that if that word were applied again, he should feel it his duty to use the strongest terms which the forms of the House would allow. The hon. Member did not, however, as it appeared to me, use any strong expression affecting the hon. Member for Knaresborough. I trust the hon. Member for Knaresborough will see, that it is perfectly irregular to allude to what has been said in a former debate.

Mr. Hutt

Perhaps, if I am perfectly in order, the House will permit me— [Loud cries of "Chair," and "Order."] I presume the House is not going to refuse to hear me in explanation of my course of proceeding—some explanation of the charges made against me. Sir, I am disposed to approach this subject in all calmness. As I have stated, I did not use the expression attributed to me. The expression I did use was—[The hon. Member was again interrupted by loud cries of "Order," and "Chair."] Surely the commonest indulgence might be granted me. I did not say that for the purpose of—[Cries of " Order, order."]

The Speaker

After having called one hon. Member to order for referring to former debates, surely the hon. Member will not repeat that irregularity.

Mr. Hutt

I will not press—

An hon. Member

You have no right.

Mr. Hutt

Who says I have no right?

Mr. C. W. Wynn

instantly rose and said, I thought that the hon. Member for Knaresborough had not concluded his speech. He was interrupted by a speech to order. He is, therefore, in possession of the House.

Mr. Ferrand

After the remarks which have fallen from the hon. Gentleman opposite, I do not think it necessary to say anything more.

Mr. Hutt

I can assure the House, that I had no intention of interrupting the hon. Member for Knaresborough. I thought he had concluded his speech. It is impossible for me not to feel myself seriously affected by the different charges made against the committee of which I am a member. I can assure the House, that according to the best of my ability, I have endeavoured to discharge my duty upon that committee. I will say, that with respect to my acting as a member of this committee, if any one should say that I have made an unjust application of my oath, or in any way perverted my duties as a man of honour—if such an allegation were made, either in this House or elsewhere, I would treat the person who made it as a calumniator and a liar. ["Chair, Chair."]

The Speaker

I must tell the hon. Member, that such expressions cannot be tolerated here. It is my duty to call on the hon. Member to retract his expression.

Mr. Hutt

I assure you, Sir, and the House, that I feel sincerely sorry if I have in any way offended against the regulations of this House. Using the expression I did, I thought it was a part of speech which was permitted in this House. I had no intention of going beyond the regulations of the House. He would dismiss this subject. He was not surprised that the right hon. Gentleman who occupied the Treasury benches did not stand forward in defence of the hon. and learned Gentleman. He thought that the hon. Gentleman who had given notice of a motion for Monday to bring this subject under the consideration of the House, would have acted a more becoming and a far fairer part, if he had communicated his intention to the committee, or to one of the Members of that committee, instead of bringing the subject unexpectedly under consideration late in the evening. He was not surprised, that many exalted and hon. Members did not acquit the hon. and learned Member of disingenuousness.

Mr. Thesiger

here rose and said, he did not know whether the hon. Member were in order. He had endeavoured to explain to the House that he had not acted on any improper motives, and he trusted he had explained that satisfactorily.

Mr. Hutt

presumed he was in order. The hon. Gentleman had made an explanation which might be satisfactory to his own mind, but it was not so to his mind, nor to a majority of that House. With regard to the motion which had been brought before the House, he could only say, that if it were decided, that the warrant was not a legal instrument, the individual in question ought to be discharged. Ho would say, in addition, that Members who served upon committees had a very arduous duty to perform, which was ren- dered still more so, when, after serving upon committees from eleven to four o'clock, and then performing their duty as Members of the House, they might be called upon at half-past two to defend any portion of their conduct.

The Solicitor-General

said, he thought one part of the suggestion of the right hon. Gentleman opposite might be acted upon by the House. The case certainly, as affected the general question of law, was of an importance which could not be exaggerated, and certainly a question of such importance ought not to be decided on the mere statement of any Gentleman in the House. The question, let him observe, was one which could not have occurred before. Since the bill of his right hon. Friend had been introduced no case of the kind had occurred; and the present case had not arisen from the provisions of that bill, but from the circumstance, that after the last general election, so many petitions against returns were presented, and the Session was so short, that no committees could be appointed for the trial of those petitions in that Session. It appeared that Speaker's warrants had been issued between one Session and another, in the existing Session, and also in the last Session; and the question had arisen, whether the Speaker's warrant issued last Session was binding in the present. When the warrant was read at the Table of the House, and he asked if it was a regular warrant, he was not aware that other warrants of a similar nature had been issued, nor of the extent to which his question would affect them, considering that the parties in that particular case had made some mistake, or had attempted to carry over to this Session the power of a warrant of the last. But now that the question had been mooted it ought to be settled. How was that to be done? He had been told, that he did wrong not to express a decided opinion upon it at first. Had he done so—had he, when first he heard the subject mentioned in the House, expressed it as his deliberate opinion, that the warrant was illegal, he thought he should have been wanting in proper respect to the Speaker and to the House. He was not aware of the existence of any act of Parliament giving, on distinct grounds, any direct legislative power to the Speaker to issue his warrant. Upon what authority, then, had the Speaker issued it? Upon the authority of one of the inherent privileges of the House of Commons. If, then, it was a privilege of the House, and not a legislative power, it was on authority derived from the House, and one which the Speaker had no right to exercise independently of the House; and if the warrant was issued by the order and under the authority of the House in the last Session, the question was, whether or not the power so exercised by the House bad not been put an end to by the prorogation? If the House entertained any doubt upon the subject, they should let the prisoner have the benefit of the doubt; and he hoped that they would adopt the suggestion of his right hon. Friend opposite, and agree to discharge the prisoner, because then they would be in a condition to discuss this question calmly, fully, and fairly. The man was not in custody for contempt, but for disobedience to the orders of the House, so that the House could have no difficulty in dealing with the case. He had purposed to move for a committee to inquire into the legality of such warrants, with a view to frame an act, if necessary, for the improvement of the present law, and he should like to see a clause passed which would relieve the House from its present anomalous position of being called upon by a committee to decide upon cases of the facts of which they knew nothing. Something had been said about the House being a court of appeal; it could not be a court of appeal while without evidence in the cases referred to it. Every hon. Member must have been vexed at the introduction of such questions into the House, seeing that they could not be discussed without exciting feelings and language that must be deplored. Therefore, everything that took place with regard to election petitions ought to be altogether removed from the House. [" Hear, hear."] He hoped he was not misunderstood. He gave no opinion upon the question whether it were right to remove these matters altogether from the House, but he thought they should be removed altogether from the body of the House. Expressing his concurrence in the proposition of his hon. Friend, he would, if the House consented to the discharge of the prisoner, give notice of a motion for Monday next,— That a select committee be appointed to inquire into the practice of the House with regard to the summoning of witnesses to attend election committees, and to report whe- ther any and what alterations in the present law upon the subject may be requisite.

Sir T. Wilde

said, he agreed, and no doubt the House would agree with his hon. and learned Friend, as to the appointment of a committee of inquiry into this subject; and that it was most desirable that acts of Parliament relating to election petitions should be so framed as to relieve the House from entering on such unsatisfactory discussions as it had recently been engaged in. With regard to the powers of the House, the act had already defined them; because it was clear that only so much of the authority of the House as had been withdrawn did it cease to possess; but all the originally constituted authority it ever possessed, and which had not been withdrawn, it still possessed and exercised, and it was under this parliamentary authority that the Speaker had acted in issuing his warrant. The House possessed an inherent power, which remained untouched, and was perfectly efficient to decide upon the case before it. If the witness, being required to produce certain papers, failed to do so, and had destroyed them or placed them out of reach, he was clearly guilty of a contempt of the authority of the House, and liable to be committed to prison. Much ambiguity and difficulty had arisen from calling the notice to produce papers served upon the witness a Speaker's warrant. It was nothing more than a notice to produce, and the question was, whether that document being signed by the Speaker was, in the judgment of the committee, a reasonable notice. The witness had not objected to the notice, nor said that he had not received reasonable notice, nor had the committee reported him guilty of contumelious conduct, but that he did not comply with the Speaker's warrant. The form of the report of the committee had given rise to the question as to the legality of the warrant; but it appeared to him that hon. Gentlemen had carried it beyond its proper limits. If the committee had reported that the man had misbehaved himself in not producing the papers required of him, the House might have been spared much trouble and inconvenience. They would have seen then whether or not the party had a fair and reasonable opportunity to produce the papers, and whether his reasons for not producing them were sufficient and bonâ fide reasons or not. If a person, after re- ceiving such a notice, might think he could destroy the papers by putting them in the fire, or could send them out of reach, and justify his conduct by the averment that the notice was issued in that or in this Session, and therefore was of no force, it was easy to conceive what would be the effect of the act of Parliament. But, suppose the committee had reported that the man had misbehaved himself, what should the House do? The act directed:— The chairman of the committee by their direction may at any time report to the House for the interposition of the authority, or of the censure, of the House. Not for the judgment, not for the opinion of the House, not for a review of the matter by the House, but for the interposition of its authority or censure:— what did that mean? It might require the interposition of the authority in only one way—commitment; or it might require only the censure of the House. It was for the House, then, to say, whether censure or commitment was to follow as the result of the verdict of the committee. It always gave him great discomfort to hear hon. Members in that House making reference to the practice of the courts in Westminster-hall, because, whatever deference they were disposed to pay to those legal tribunals, if their authority were admitted in the case, the authority of Parliament would be limited. The rules of the courts at Westminster, in fact, were not applicable to the practice of Parliament, which was founded upon higher and entirely different principles. If it should turn out upon inquiry that an order made in one Session ceased to be of force in another, which he doubted, he would still protest against attempting a remedy by a new act, because the House had power to make standing orders in one Session to govern the proceedings of that and future Sessions. He knew of no constitutional reason why their power in this respect should be limited. At all events, this was a question which must now be set at rest, and he knew of no better mode than that suggested by his hon. and learned Friend. He thought nothing could be more mischievous than for the Members of the same committee, sitting on both sides of the House, to rise in their places and state opposite views of the same question. The circumstance of hon. Members being thus brought into collision with each other tended much to incapacitate them for coolness, deliberation, and judgment. He should vote for the discharge of the prisoner, because he thought that, pending the inquiry which his hon. and learned Friend the Solicitor-general had prepared, he ought not to be retained in custody. He had no doubt upon the point mooted by his hon. and learned Friend; but as his hon. and learned Friend,—and there could not be higher authority—had expressed a doubt on the subject, he would not oppose the inquiry which was suggested.

Sir C. Napier

had not last evening an opportunity of replying to a grave charge made against him by the right hon. Baronet at the head of her Majesty's Government. He had been accused by the right hon. Baronet of having endeavoured to embarrass the Government by bringing forward a motion of an unparalleled character—["Order."]

Lord Mahon

rose to order. He appealed to the House whether it was fair in the absence of the right hon. Baronet to make any observation with reference to what had fallen from the right hon. Baronet on a previous occasion.

Sir C. Napier

begged to assure the House, that in the course which he thought proper to pursue last night, it was not his intention either to embarrass the Government, the House, or the Southampton Election Committee; but when he heard her Majesty's Attorney-general, the highest legal authority in the House, state that he had consulted works, and had ransacked acts of Parliament, with a view of solving the question at issue, and that after this, the conviction on his (the Attorney-general's) mind was, that the warrant was illegal—wben, in addition to this, he heard the hon. and learned Member for Woodstock express a similar opinion, he (Sir C. Napier) thought, that the prisoner ought to have the benefit of that doubt and be discharged. He was glad to find, that what was considered wrong last night, was viewed in an opposite light this afternoon. Although he was in a minority of thirteen last evening, it now appeared the unanimous opinion of the House that the prisoner should be discharged.

Mr. W. O. Stanley

said, that he had not yet addressed the House on the subject. He thought, that the Members of the committee ought not to intrude unnecessarily their opinions on the House until the proceedings had been brought to a conclusion. The chairman was the proper person to bring the subject before the House. He could assure hon. Members, that neither himself nor any other Member of the committee had been influenced by any vindictive feeling in committing the prisoner to the custody of the Sergeant-at-Arms. They had been induced so to act, because they thought the Speaker's warrant had been treated with disrespect.

Mr. Redington

said, that he should support the motion of the hon. Member for Woodstock.

Motion agreed to.

Mr. Mabson

ordered to be discharged.

Mr. C. Wood

suggested, that the prisoner should be ordered to attend the Southampton Committee on Monday morning.

The Solicitor-General

agreed in the propriety of the suggestion.

Ordered accordingly—

That Mr. Malison do attend the Southampton Committee on Monday next.

Adjourned.

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