§ Mr. R. Wason
rose to call the attention of the House to the petition of Mr. H. Ashurst relative to the Ipswich election, and to submit the necessity of adopting some means to secure the evidence of Sir Thomas Cochrane upon the subject of the Ipswich election petition. He thought the House ought to possess, and did possess, the power to compel the attendance of a material witness previous to the trial of a case, where he could not be present at the trial. The 1st of William 4th, c. 22, had given to the courts of 885 law the power which he claimed for the House; and such a power was clearly essential to the exercise of the functions of a court of justice. But if it was necessary to a court of law, it was infinitely more necessary to the House of Commons. Because, if a suitor in a court of law represented that a material witness could not be present at the time fixed for a trial, the court could and usually did postpone the trial. But the House could not postpone a case in this way, and therefore it was the more necessary that it should have such a a power as he contended for. But although it might be admitted that the House ought to possess such a power, it might be contended that in point of fact they had it not. He (Mr. Wason) maintained that the House inherently possessed every power and privilege necessary to the due performance of its public functions. It might be asked, how did he propose to enforce the power in the present case? He thought the utmost courtesy should be used to the gallant Admiral in question, and he thought the petition showed that those who required Sir Thomas Cochrane's evidence were anxious to make any arrangements that would suit his convenience. Sir Thomas Cochrane, however, had ultimately declined to enter into negotiation on the subject. There were two or three courses which he thought the House might take in this case. One way was to require the attendance of the gallant officer at the House to-morrow; he might then be examined respecting those papers, and might produce them, and those, with his examination taken by a short-hand writer, might be brought before an election committee on oath. He did not wish to enter into the constitutional bearings of this question, but he trusted the House would see, the unless this case was looked into, the most enormous power might be vested in the hands of a wicked minister. If the House of Commons could not interfere in a case like this, it might happen that all a minister would have to do, to carry elections, would be to send a dozen or a couple of dozen of officers to enter into negotiations as to the money that ought to be given to a certain number of voters for the purposes of bribery, and these having received full information of the position in which the towns were placed, another gentleman might come forward, who, without entering into any preliminaries, might quietly pay the money without saying any thing on the 886 subject. This would be giving, in his estimation, to a bad minister, enormous powers for tampering with the elections to that House, especially could the same minister have the power of sending persons out of the way who might be required as witnesses. It could not be said its this case that it was a fishing inquiry, for the document wanted had already appeared in the public papers; it had been made the subject of animadversion in the House, and if the House would look to the first letter of Mr. Ashurst, it would be seen that the attention of the gallant Officer had been directly called to that which was wanted. This was the letter:—In serving you with the Speaker's warrant to attend the Ipswich election committee, I beg, on behalf of the sitting Members, to as. sure you that it is not their wish to put you to the slightest personal inconvenience. Their object is to lay in a proper manner before the committee that correspondence, a portion of which has already been published both in the local and London papers; and should with pleasure confer with any professional gentleman you may refer to, to attain that object with the least personal inconvenience to yourself.The summons served upon Sir Thomas Cochrane called upon him to produce the documents. The question then for the House to determine was this—could it, or could it not, compel the attendance of a witness served with the Speaker's warrant, who had declared his intention of going abroad? This came within the point for which he was contending. First, there was a case pending; second, the witness declared his intention of going abroad; third, the question which was to be the subject of examination must be material to the point at issue. [The Attorney-general " Hear, hear."] He observed that the hon. Attorney-general cheered him in laying down the position. If the Attorney-general wished, he could show that it was most material. He had no objection to show to the House why it was that this evidence must be most material. Here the parties had complied with every thing that a court of law required previous to the granting of a summons. The House would receive nothing upon affidavit—proceedings there could only be upon petition. Here, then, they had first a petition presented and to be tried. There was thus a case pending. Secondly, the petitioner stated that Sir Thomas Cochrane had the intention of going abroad. He said, that 887Your petitioner having been informed that the said Sir Thomas Cochrane had declared his intention of going abroad, and thus depriving the sitting Members of the benefit of his testimony, directed his clerk, Stewart Tournay (who had served the said Sir Thomas Cochrane with the said summons), to call upon the said Sir Thomas Cochrane to make an appointment for your petitioner, with the view of preventing any personal inconvenience to the said Sir Thomas Cochrane by his detention in this country. That the said Stewart Tournay accordingly, on Monday, the 21st of February instant, called at the said Sir Thomas Cochrane's residence, and was informed by the servant of the said Sir Thomas Cochrane that his master was going abroad in the space of about ten days. That the said Stewart Tournay afterwards saw the said Sir Thomas Cochrane, and requested him to make an appointment for your petitioner to call upon him for the purpose aforesaid, when the said Sir Thomas Cochrane declined to make any such appointment; and, in answer to a remark that the said Stewart Tournay made to him, as to whether your petitioner was to consider such refusal as his (Sir Thomas Cochrane's) final determination not to take any notice of the Speaker's warrant served upon him by the said Stewart Tournay, the said Sir Thomas Cochrane stated that he should not express any further opinion of his intentions, or words to that effect. Your petitioner therefore prays your honourable House to take the subject into your consideration, and to do that which you shall deem best adapted to promote the ends of justice.The hon. Member referred to Archibald's Practice, p. 243, to show that such evidence would be sufficient in a court of law to make a Judge grant a rule nisi under the circumstances. And if a court of law deemed it unnecessary to show the materiality of the evidence, surely it could not be unnecessary in that place, which was the grand inquest of the nation, that they should resort to any quibbling to prevent the petitioner having the relief he applied for. He would, therefore, move that Sir T. Cochrane be called to the bar of the House, to answer the allegations in the petition. But if any other hon. Member would suggest any other proposition, which would be less inconvenient to Sir Thomas Cochrane, all the correspondence at the same time being produced, and no injury resulting to any party, he would agree to it. But if the Attorney-general should consider it necessary to show that the correspondence was absolutely material and essential, he was ready to prove it was so at that very moment. He would, therefore, conclude by moving that Sir Thomas Cochrane be called to the Bar of the House.
thought it was hardly necessary he should state, that neither the hon. Gentlemen opposite, nor any other hon. Member in the House entertained a more profound respect for the powers and privileges of that House, or was more strongly of opinion that as much respect, or if possible more respect, should be paid to any mandate, authority, or warrant, from the Speaker of that House directing the attendance of a gentleman upon an election committee, as would be paid to the same species of process issued from any other court, than was he (the Attorney-general). But having made that concession, he must say, that he scarcely knew what object the hon. Member had in view in calling Sir T. Cochrane to the Bar of the House. Undoubtedly the courts in Westminster-hall, had the power under a particular Act of Parliament of obtaining the evidence of witnesses beforehand, which might afterwards be referred to for the purposes of the trial; and it might be desirable that that House should in some way or other possess that power, but beyond all doubt the House at present did not possess it, nor any means whatever of exercising any similar description of inquiry. It seemed to him, therefore, that the suggestion that Sir T. Cochrane should attend at the Bar of the House, and then, that his examination, not upon oath, should be taken, and should be laid before the committee with an attestation substantiating its correctness, was not a proposition which could be held to be in conformity with the law of evidence in this kingdom. He could not but suppose that this motion was brought forward by the hon. Member in ignorance of that fact. He admitted, that the subject was one of considerable importance, and that it might be quite right that some means should be hereafter adopted to further the ends of justice, by enabling the House to bring before it persons who might be required as witnesses on election petitions and who contemplated leaving the country. He also very readily admitted, that inconveniences and disadvantages might arise from the non-possession of that power; but the House would recollect that there might be disadvantages on the other side in every respect equally cogent. He would state a fact regarding the present case which would illustrate his meaning. Sir T. Cochrane was appointed to the important office he was now about to leave England for the 889 purpose of holding before he was served with the Speaker's warrant. Now, let the House suppose it possible that it was because his high reputation and gallantry in the naval service of his country, had commended him to the authorities as a proper person to hold this appointment; that it was for this reason he was selected as a fit person to be served with the Speaker's subpœna. He was far from insinuating that that was the case, but he put it to the House that such circumstances might happen. But, in addition to the other facts, he would call upon the House to consider how Sir T. Cochrane was situated in this matter, That gallant Officer had not been a candidate for Ipswich at the late election, he had not been personally interested in the election, he had taken no part in it, he had had nothing material to do with it. It was true that Sir Thomas had been a candidate for the representation of the borough on a previous occasion, and he (the Attorney-general) supposed it was on account of some circumstances connected with that earlier contest [Mr .R. Wason—No, no], at any rate it was on account of circumstances which the hon. Member opposite had not clearly stated, and which were not disclosed in the petition, that it was now proposed to call him to their bar for the purpose of examination. He thought those circumstance had been very unnecessarily kept back, and that much needless delicacy had been shown in not stating them. But not being set forth, it was for the House to take the facts as they found them, and to look at the real position in which Sir T. Cochrane was placed. Now he would take for granted what had not been stated in the House, but what he was led to believe was the case—that Sir T. Cochrane had written some letters in the newspapers stating, that he had been asked to become a candidate for Ipswich, and had refused the invitation, and be would also take for granted that it was upon facts adverted to in those letters, that it was now desired that the gallant Officer should undergo examination. He thought it would be very difficult for any one to say, that such circumstance constituted a legal ground for calling Sir T. Cochrane to the Bar. The House, too, would bear in mind, that it possessed the means of doing justice to all the parties concerned in this case, with out presupposing that Sir T. Cochrane would so far forget himself, so greatly neglect his public duty, or the respect he owed to that House, as to refuse to obey 890 the subpœna of the Speaker. They ought to take it for granted, that the gallant Officer would obey the warrant, but if in the result they discovered that he had formed an erroneous judgment, either as to the importance of his testimony, or the duty due to the warrant of that House; if they found that despite, that warrant, he did go abroad without giving his evidence then the House should remember that an application could be made to the special committee, who could postpone their decision and make an application to the House upon the subject. He desired it should be borne in mind also, that this motion was made on behalf of the sitting Members, and further, that it was perfectly competent for the committe, if they found it necessary, to postpone their decision until Sir T. Cochrane returned from abroad. As sitting Members the parties concerned were deprived of no right, and therefore the committee in so postponing the decision would be doing infinitely less injustice, than if they were keeping parties out of the seats to which they deemed they were entitled. But, supposing the House did agree to adopt steps in the matter, what, he would ask, were they to do? Could they issue a writ of ne exeat regno, to prevent the gallant Admiral from going abroad? Even supposing he was at the Bar, and questions were put to him, what use could be made of his evidence? He admitted, for his own part, that, giving the subject all due consideration—treating it with all the gravity and attention it deserved—he could not think that the House had the power to take any such step. He was sure they had no such power if they acted on the rules of the courts below. If any such motion as that before the House were made in any court in West-minster-hall, the simple answer to it would be, "This court cannot assume that the witness will wantonly neglect his duty, and therefore it is impossible to concur in any such application." They in that House must act on the same principle. They must not assume that any subject intended to fail in his respect to the law. Unless they chose to interfere, the matter would remain as it was for the present. No step would be taken in it either on one side or on the other, until the appointed period came for investigation. When that time arrived, they would see whether or not the witness subpœned appeared to give evidence, and if he did not, then he was open to punishment. He would submit, therefore, that 891 the House must leave the question where it was. If the law in the matter was defective it could be amended, but it would, he thought, be highly inexpedient to adopt a course which was new, unprecedented, inconvenient, and not very respectful either to the gallant Officer or to their own authority. Taking this view of the question, he should meet the hon. Member's motion with a direct negative, in which he trusted the House would concur.
remarked, that the hon. and learned Gentleman who had just sat down, had argued this case with that legal ingenuity and consummate skill which might have been expected in one so highly distinguished in his profession. But what the House ought to do, was to look at the simple facts presented to it. It was alleged, that Sir T. Cochrane was in the possession of evidence—that it was not his mere personal attendance alone that was required —that it was not verbal evidence merely that was expected to be obtained from him; but also written documents and letters. It was alleged that these documents were material to this case. It was also alleged in addition, that Sir T. Cochrane had been served with a summons to attend and give evidence, and that he was about to leave this country before the case could be heard. Was it fitting, then, under such circumstances, that the House should not do its utmost to have evidence in a case which was so material? Were they to omit this opportunity of getting at that evidence, which it was alleged was so material, on the mere prospect that had been held out to them, that the committee might adjourn its sittings until the gallant Officer's return. That gallant Officer was going abroad, and, as it was to be supposed, acting there with a similar gallantry that had distinguished him upon former occasions, they could not be quite so certain that he would ever come back again. That, then, being the case, they found the Attorney-general ridiculing, and with justice, the idea that what Sir T. Cochrane might state at that bar could, through the oath of another party, be made evidence. But then they could do this—if Sir T. Cochrane came to the bar, and stated that he had documents in his possession material to a case then pending, means might be taken to prevent him from going out of the country. Should he be told that the House, under such 892 circumstances, had not the power to prevent Sir T. Cochrane from going out of the country? It was to be observed, that in this case he did not impugn Sir T. Cochrane. If the Attorney-general said, that Sir T. Cochrane had not the documents in his possession, he must believe the assertion, and in that case would vote with the Attorney-general. It was not denied, that Sir T. Cochrane had the documents in his possession. Here there was no impeachment on the Government that it sent Sir T. Cochrane purposely out of the way; but then they were to recollect, that they were now laying down a general rule, and that, although the present Government would not do any such thing, yet another government might come hereafter that would have no such scruples. Here Sir T. Cochrane was put to no unnecessary inconvenience. All that was required was, that he should come to the Bar and tell them if he had the documents which it was considered necessary should be produced. If Sir T. Cochrane said "No," then there was an end to the investigation, and Sir T. Cochrane could go on his foreign mission. In the one case there could be no inconvenience to Sir T. Cochrane; but, on the other hand, the greatest loss might accrue to the parties, and the greatest injustice be done to them. Sir T. Cochrane had been served with a summons to attend, and was bound to appear as a witness. If he did not attend, it was said to be in the power of Parliament to punish him; but then let them recollect, that this Parliament might be at an end before Sir T. Cochrane returned to England, and the next Parliament would not punish him for a fault of which he was guilty with respect to this. Supposing a party had been served with a subpœna ad test, before one of the ordinary courts of justice, and that the party receiving it declared that he would not attend and give evidence, would it be contended that such a declaration would not be made a ground of attachment with the Court of Queen's Bench? There would be little hesitation in such a case with a court, that considered its authority thus set at defiance in taking care that the party should be in such custody as that he would be certain of being found on the day of trial. It appeared to him, that all the justice of the case required a compliance with the motion. There could be no inconvenience to the gallant Officer, if he could not give 893 material evidence; while, if he could, his absence might be attended with the greatest inconvenience to the parties. If the allegation of the petitioner were true, it was his opinion that they could not refuse the motion without doing very great injury.
§ The Solicitor-General
understood the motion of the hon. Member to be founded upon these facts. A petition had been presented against the return of the hon. Member himself and another hon. Member, and now there was a petition setting forth a correspondence between the solicitor for the sitting Members and Sir T. Cochrane, with respect to letters which were alleged to be of importance. It then went on to state that Sir T. Cochrane was going abroad, and then the motion was made that Sir T. Cochrane be directed to attend at the Bar of the House. Now, it appeared contrary to principle, that a person should attend at the Bar to give evidence respecting a controverted election. The House had not now the trial of election petitions. They were to be tried under an act of the Legislature. It was not the House, but a particular tribunal, that was to decide these cases, and the witnesses were bound to attend there, for the purpose of being examined on oath. Witnesses, too, were bound to produce papers and documents. It was there, and there alone, these matters were to be tried. Here the proposition was, that a gentleman who had been served with a warrant should, because summoned be compelled to appear at the Bar. The hon. and learned Member for Cork said, it was not for the purpose of the person undergoing examination at the Bar; but he said, that it was that the House might have the power of preventing him from going abroad. If it were for that purpose, it was doing that which no court of justice would do. He entirely disagreed with the hon. Member for Cork, when he affirmed, that a witness being served with a summons, and saying, that he would not attend, that that person would be taken into custody. Such a course of proceeding in any court of justice was entirely unprecedented in this country. A witness was bound to obey the summons of a court of justice. He was liable to an action if he did not do so; and if he did not obey the order of the court lie might be attached. This might be done; but then he denied, that the 894 Queen's Bench had the power of imprisoning a person for the purpose of examining him. He spoke now of the ordinary process in trials at Westminster. Here it was proposed, because it was alleged, that a person could give evidence and produce papers, and that he was going out of the country, that he should be committed to the custody of the Sergeant-at-arms. Such a course of proceeding would surely be most extraordinary. Why were they not to proceed with election petitions as with ordinary trials in their courts of justice? If he, himself, had a trial coming on in the Queen's Bench, and he had summoned Sir Thomas Cochrane as a witness, then, if Sir Thomas did not choose to attend, he would be liable to punishment; but surely the Queen's Bench would not interfere to prevent him going out of the country on a mission from his Sovereign. One could not help seeing that this was the case of a sitting Member, and here he asked for that which had nothing to do with the last election, as he understood the correspondence sought for did not refer to the last election. [Mr. Wason: No, no; not so.] As it appeared to him, there was no statement, that Sir Thomas Cochrane had interfered with the last election. If the House wished for additional powers beyond those conferred by the Grenville Act, then it might, by an Act of Parliament, seek to have the powers which were given to the Queen's Bench. By a recent act where a witness was not likely to attend from illness, or because he was going to leave the country, he might be examined before a master, and also cross-examined, and then the document could be read afterwards on the trial. If it were thought right by them, the same powers might be given. They might improve the Grenville Act, and give the House of Commons in such cases the power that was now possessed by the Queen's Bench. That which occurred in this case might occur in every case; and then, where it was stated, that a person was not likely to appear before an election committee, that House must have the parties examined at the Bar instead of before an election committee. He put it to the hon. Gentleman not to press his motion to a division, because he was sure, that a little reflection must convince him, that it was one to which the House could not accede. If the hon. Gentleman considered there was a defect in the existing law, and that their powers should be 895 assimilated to those of the courts of Westminster, it was a fit subject for legislation; but it was not in the power of the House to assume that others would neglect their duty towards that House, or that the extraordinary means that he proposed could be adopted. If the hon. Gentleman pressed his motion to a division, he must vote against him.
was surprised the hon. and learned Gentleman should have so totally mistaken him. The hon. and learned Gentleman had attributed to him the having stated, that a person receiving a subpœna ad test., and that the witness, upon the allegation, that he was about to withdraw from the trial, would, under such circumstances, be attached. He had not said that; but it was a part of what he said, omitting a material portion. What he had said was, that a person being subpœnaed, and declaring his intention not to attend the trial, would not be attached forthwith, but that the declaration would be made a case for the Court of Queen's Bench attaching him. The hon. and learned Gentleman had also accused hire of stating, that Sir Thomas Cochrane could not be examined at the Bar. Now, what he had said was, that Sir Thomas Cochrane could be examined as to whether he had the documents in his possession or not; and if he stated that he had, then, though his examination could not be given in evidence, the documents could.
§ Mr. Aglionby
thought the hon. and learned Gentleman, the Solicitor-general, had strained his argument beyond the proper point. The real question in the present case was whether a witness, who was now within the jurisdiction of the House, but who was about to take himself out of that jurisdiction by going abroad, was, by analogy with the practice of the courts of law, amenable to its jurisdiction, and whether the House had any power to obtain the papers required for the proper information of the committee. In a court of law, if an allegation was made that a particular witness, whose evidence was material, was about to go abroad, the effect was to procure an order to examine the witness on interrogatories. If the House was to have any power to effect the ends of justice, by analogy to the courts of law, he did not see what there was incongruous in proposing to bring the gallant Officer to the Bar to examine him on interrogatories. If the hon. and learned 896 Gentleman's view were to prevail, and any person who had documents necessary to the elucidation of a case which was to come before a committee of the House, were to be allowed to leave the country, the consequence would be that the ends of justice would be frustrated.
§ Mr. T. Duncombe
said, after what he had heard from the two hon. and learned Gentlemen, the law officers of the Crown, he did not think that a sufficient case had been made out for calling Sir T. Cochrane to the Bar of the House; but he thought it was certainly right that the House should have the power of compelling a witness to give evidence, or put in documents, in any case coming before it. Sir T. Cochrane was now employed in the service of the Crown, and he thought that any officer in that position should be prevented from leaving the country. The House had a right, as representatives of the people, to require from the Ministers, for the sake of the purity of Members' seats, an assurance that, as far as they were concerned, Sir T. Cochrane should not leave the country until he had given the evidence which the warrant of the right hon. Gentleman in the Chair should demand from him. He should only add, that after the allegations made relative to the furnishing of a sum of money for the Ipswich election, it would be a disgrace to the Tory party and to the Government of the country, if this individual was allowed to go out to China, or anywhere else, before he had satisfied the demands of the House.
§ Sir R. Peel
said, the hon. Gentleman opposite (Mr. R. Wason) had given notice of a motion, and concluded his speech with a motion, though he had felt so doubtful as to the course he should pursue that he said, if anybody else would suggest a more expedient method of proceeding, he should be ready to adopt it. After half an hour's discussion, the hon. Gentleman who seconded the motion (Mr. T. Duncombe) had admitted that it could not be sustained. He quite agreed with the hon. Gentleman that it would be a most dangerous precedent to establish, in reference to a jurisdiction now exercised under an act of Parliament, to call a witness who ought to appear before an election committee, and have him examined at the Bar of the House. It would be difficult to say how far this practice might be carried; the consequences might 897 be such, that every Member would shrink from establishing a precedent for such a course. With respect to the analogy of the practice of the courts of justice, that had nothing to do with the present case. In these courts witnesses were examined on oath. The House had no inherent constitutional power to take such a security. They had power to send a commission to take evidence, but they did not exercise it by analogy to the practice of the courts of justice. They exercised the power under a statute, and they should not exercise that power if they did not possess it under statute—a very strong proof that they could not venture to exercise powers on the part of this House from analogy with the practice of the courts of justice. The hon. Gentleman asked him to give an assurance that Sir T. Cochrane should be detained in the country till be gave evidence. He must decline to give any answer, because he thought it required very serious consideration before any such assurance should be given. He would admit, that in this case the object assigned was a bonâ fide one; that the parties really believed the evidence of Sir T. Cochrane to be material, and that there was nothing in the case except what appeared on the face of it. But other parties, availing themselves of a Precedent of this kind, might allege that which they really did not feel. He apprehended that the issue of the warrant by the Speaker was almost a matter of course. Any party might go to the Speaker and say, "I deem the evidence of a certain witness to be material, and therefore request you to serve him with a warrant." The Speaker would in that case issue the warrant without undertaking any inquiry as to whether the evidence was material or not. If such an assurance as was asked for were to be given, see what a precedent would be established. The service of the country might require the immediate departure of an officer of the highest distinction to assume an important command. Were they to establish a precedent not for the interference of the House, but of any individual who chose to say that he considered the evidence of that officer to be material to an election petition? The Speaker's warrant would issue, and therefore the services of the officer must be lost to the country till the petition came on for trial, perhaps not before June. [Mr. T. Duncombe: The 898 11th of April.] That might be, but it had no bearing on his argument. If the assurance was given, the officer must be detained, if necessary, till the 10th of August. The hon. Gentleman had shown that he was open to conviction in this matter; he thought he had proved that he acted wisely and cautiously in declining to give a positive assurance that he would detain a distinguished officer from important public duties, not because the House of Commons interfered, but because a private individual said he thought the witness was in possession of documents which would be useful in an investigation before an election committee.
§ Mr. R. Wason
was quite satisfied with the right hon. Baronet's assurance that he would consider the subject. He trusted the House would see that he had done his duty in bringing the subject before it, and under the circumstances he would not press his motion. The right hon. Baronet had dwelt on the danger of establishing a precedent by which witnesses might be prevented from leaving the country, but there was a wide distinction in the present case, in as much as Sir T. Cochrane had admitted himself to be a party to proceedings connected with the election.
§ Sir R. Peel
observed, that what he had said was, that there would be the greatest inconvenience in establishing a precedent which might prejudice the most important interests of the national service.
§ Motion withdrawn.