HC Deb 26 February 1858 vol 149 cc4-15

Sir, I wish to trespass upon the time and patience of the House for a short period, while I endeavour to bring before it some considerations which appear to me to affect in a material degree the regularity and the decency of proceedings in Parliament, even if they do not in some measure affect the privileges of Members of this House. If there be in any nation two deliberative assemblies, acting in concert with each other, it seems consistent with propriety and also with the obligations of decency that if a speech be delivered by a member of one of those deliberative bodies in considering a measure brought before it, it should not be competent for any member of the other assembly, before the measure is submitted to them, to take that particular speech and to make it the subject of criticism, and to accompany that criticism by personal and offensive observations. It is impossible to conceive anything that would more tend to interrupt the order which should prevail in deliberative assemblies, or which could more interfere with regularity and propriety of conduct on the part of the Members than such a course of proceeding. But, Sir, one might condone this—one might pass it over without remark—if it were the accidental exuberance of zeal or enthusiasm on the part of some young Member of either House; one might even forgive it if the offender had been accidentally betrayed upon one occasion only into such forgetfulness. But, if it turns out to be a practice repeatedly pursued, frequently remonstrated against in private, although forborne to be noticed in public; if it turns out to be a practice followed by grave and reverend and aged men, entitled to be regarded as leaders in the assembly of which they are Members, and who may fairly be expected to afford to younger Members examples of order, of regularity, and decency—more especially when those grave and eminent personages happen to be invested with the highest judicial functions—then it becomes unquestionably a most unfortunate thing, which no one can contemplate without the deepest regret and pain. I must beg the indulgence of the House while I call its attention to certain proceedings which already figure in the history which is given of the transactions of our two deliberative assemblies. In the month of August last, a great and important measure (the Trustees Relief Bill) came down from the other body to be considered in this, the Lower House. It was brought forward at a time when it was utterly impossible to give to that measure the calm, patient, and lengthened attention which its importance required. It had been conceived, as it appeared, by certain Members of that assembly with great deliberation, but it was expressed and accompanied by more than usual infelicity. That being so, in measured and temperate language, without any allusion to the authors of the measure in the other assembly, this House, without a division, unanimously, and apparently even with the assent of its propounders, came to the determination not to entertain it. That decision having been come to, a scene took place in the other deliberative body in which a grave and learned and most eminent person, disappointed apparently at the measure not having been received here, addressed that House in language which I find thus reported in history. It is by examples of the past that we are to correct our conduct for the future. That noble Lord (Lord St. Leonards), after alluding to a Bill which he had prepared and introduced to protect honest trustees, in reference to what had passed in another place, is represented to have said; — On that occasion, however, the learned organ of the Government in the House of Commons stated that the measure was so inaccurate and obscure, and so inadequate for the purpose for which it was intended, that it would require at least three days to make it right. That learned person then added—with the confidence which belonged to him, and by which he was led to imagine that he could make that clear which was obscure, substitute light for darkness, and make that adequate which was inadequate,—that he himself would undertake to introduce a suitable measure on the subject in the next Session of Parliament. He certainly was astonished to learn that that learned person had spoken in those terms of a measure which had been prepared with such great care and deliberation, and which had passed through their Lordships' House without any great objection."—[3 Hansard, cxlvii. 1778.] I do not know whether these terms are to be deemed complimentary or the opposite. I rather believe that they were not used with the intention of conveying any praise, but rather of personally holding up a Member of the other deliberative body, who had performed what he conceived to be his duty, to ridicule and public observation on the ground of the observations he had made. Now, the individual alluded to unquestionably felt a good deal of pity for the irritable feeling that prompted these observations, and although he might have brought the matter before the body to which he belonged, yet from considerations of the past he abstained, and contented himself with addressing a remonstrance to the Members who heard this speech, and with expressing an earnest desire that proceedings such as these, which were likely to lead to feelings of rupture between the two bodies, might not be for the future persevered in. Now, Sir, on another occasion a grave question arose before the deliberative assembly to which I allude, touching a most important institution in a country—namely, the great and supreme Court of Appeal. The person who has now the honour of addressing this great assembly was called upon by many Members of this House to declare the opinion which he had formed from his experience of the way in which that great court had discharged the functions committed to it by the constitution, and what might he required, if need were, to render it more satisfactory in the performance of those functions. A great debate ensued, in which many Members took part, and which ended with an expression of the carefully considered opinion of the body then deliberating. These proceedings, being communicated to the public in the ordinary way, attracted the attention of Members of another assembly. These grave and learned persons to whom I have referred, and to whom that body should look up as guides in matters of order, met together for the purpose of expressing an opinion upon what had been stated in the other great Council of the nation. This is the language which history records to have been used on that occasion by the very grave and learned person who fills the highest judicial seat in the courts of law in this country:— Lord Campbell had witnessed, he must say with indignation, the attack that had been made on their Lordships' judicial jurisdiction by Her Majesty's Solicitor General. It was a most violent attack, having a direct tendency to bring their jurisdiction into disrepute, and it was astonishing that it should come from an officer of Her Majesty's Government. It was an attack upon the constituted authorities of the country and upon a public functionary—for he (Lord Campbell) must say, that it appeared to him to be an attack on his noble and learned friend on the woolsack who presided over their Lordships" proceedings when sitting as a Court of Appeal. It seemed to him, if the report were a just representation of what fell from the Solicitor General, that he thought that justice would never be satisfactorily administered in their Lordships' House until he (the Solicitor General) was presiding on the woolsack. Now, Sir, if I were speaking of the language used by John Thomas to James Styles out of doors, I should pass it by as that species of personality which indicates great want of good breeding and good manners. But if this history says true, and if those words did proceed from one who was bound to maintain all order, all gravity, and all decency, why, undoubtedly, it is a thing to be spoken of with the greatest pain and regret. So far as the institution is concerned to which I have referred—these remarks having been made when the individual had no power to bring them before the other body, which had adjourned—that individual was content with the ample revenge which he afterwards had, without any act of his, by these same learned persons appointing a Committee to consider that very institution of which they had constituted themselves the champions in these singularly vulgar terms; and this Committee, by the evidence they took and their own Report, said much worse and more severe things of the institution in question than they had attributed to the unfortunate Solicitor General. To crown the matter, the individual who used this language came to this very Solicitor General, and, with an inconsistency which those who know him better than I have the honour to do tell me is not an unusual thing, deplored the state of this very institution, and begged the assistance of the person to whom he applied in devising some means of improvement. So much with regard to the past. With regard to a later occurrence, there is also recorded in history a passage which I wish humbly to submit is deserving of grave consideration. It is the province of the Judges of the land to declare the law, but to declare the law in their courts, after argument, upon a judicial occasion, and after grave deliberation. It is most deeply to be deplored if there should happen to be in any country a Judge of the greatest eminence and authority, who must know well that, in a particular conjuncture of circumstances, he might be called upon to sit in judgment upon a particular case, and who yet, with reference to that case, before it came before him, gratuitously and unnecessarily rushed into public, and declared that the law which governed the case was so and so, and that all who held a different opinion committed such grievous errors that it gave him the most acute pain to observe the blunders into which they had fallen. Well, Sir, if there is a man who should have done such a thing, and if such a man should be clothed with the ermine of the highest station, I think this House will be of opinion with me, that he would disqualify himself from sitting as a Judge to hear and determine that question, if the case on which he had thus given an opinion and decision should arise. There is nothing more to be deprecated in the Judges of the land than that they should be "incontinent of tongue." I quite agree that when the occasion demands the expression of opinion it ought to be given with firmness, and I would not desire to check it in any manner. But I humbly trust that this House will agree with me in deploring the case when it should arise, when individuals clothed with that authority should be found in this manner to commit themselves to opinions which render them incompetent to discharge the highest judicial functions. I have another object in trespassing upon the House. It is very inferior to that which I have alluded, and yet to me it is extremely dear and extremely important, and I trust the House will allow me to speak upon it with great sincerity and without affectation. If there is anything that I have felt due to the House during the time that I have had the honour to hold office, it is that when I have been called upon by the House of Commons to give an opinion I should give it faithfully, conscientiously, according to the best of my knowledge, and with the sincere belief that it is correct and well grounded. Therefore, when I am charged with having made to the House of Commons a statement so erroneous that no man of common understanding could have made it, it is undoubtedly most important to me that I should be borne with while I bring before the House the accusations and the answers. It will he in the recollection of the House that on Friday night last, during the discussion which took place on the Bill then before the House—the Conspiracy to Murder Bill—I was called upon in a very earnest manner, by my right hon. Friend the Member for the University of Oxford (Mr. Gladstone) to express my opinion on that measure. I ventured to give that opinion to the House as clearly and as accurately as I could. I must confess that I have always had a certain horror of endeavouring to guard myself in giving opinions by using words of doubt or ambiguity. It is a very common practice with lawyers to avoid giving an opinion upon any doubtful question. They say that the decision may be on this side or on that; and, in point of fact, they give no opinion whatever. Now, on all occasions upon which I have been called upon by the House of Commons to examine a subject with the view of stating my opinion, I have been desirous—whether it be a merit or demerit—to form the best opinion I could, and to express it in the clearest and simplest language. Now, the tenor of my argument on last Friday night, as hon. Members will bear me out, was this: — I was desirous of showing that an alien stood upon a different footing from that of a British-born subject with reference to particular cases. I am quite sure that no hon. Gentleman who did me the favour of attending to what I said for a single moment supposed that I ever affirmed the state of the law to be this—that an alien coming to this country is not amenable to our law—that an alien coming to this country could rob, or murder, or commit any species of violence without being amenable to law. But will the House believe me when I say that that particular proposition having been extracted from the rest of my speech, was put forth in another place as representing my arguments upon Friday last? Now, Sir, I happened to be in a particular room in which the following took place. A grave and learned Judge rose and said that he was desirous or putting a question to a noble and learned Lord. The person interrogated was evidently prepared for the question, for he rose up and took out of his pocket a newspaper. He read from that newspaper certain words, which he said constituted the argument of the Attorney General elsewhere. He then proceeded to denounce that particular passage, and to represent it as being totally at variance with the law of this country. Now, the House will permit me to quote from an historical record the words I actually uttered: —


I rise to order, Mr. Speaker. I have always understood it to be the rule in this House that there should be no reference to a matter which has occurred in a previous debate in the same Session. I am perfectly aware that the House may be much more desirous of hearing the statement of the hon. and learned Gentleman than anything I can offer; but there is one observation which I will make—and I hope that not only this, but every future House of Commons will concur in it—namely, that there is nothing of greater importance than to adhere to our Standing Orders. It is with the view of having those Standing Orders enforced that I take the liberty of now rising to order. If the House wish that a matter which personally affects the hon. and learned Gentleman should be explained, let them give him a specific indulgence to that extent, but let not our Standing Orders be infringed by any one, and least of all by the course proposed by the hon. and learned Gentleman.


In answer to the appeal made to me I must give my opinion that up to this period the address of the hon. and learned Gentleman has not transgressed the Rules or Standing Orders of the House. He is now taking an opportunity of making a personal explanation, and the House always permits hon. Members to make such explanations.


I am desirous of stating as briefly as I can what was really the argument maintained by me on the occasion in question. The particular expressions then used by me were to this effect: — The state of the English law I believe to be this—that foreigners are able to do in this country that which your own subjects are unable to do in this country, and that which would be a crime in natural-born British subjects is a matter of impunity in foreigners. An illustration of that was subsequently given by me in the following words:— I believe that the state of the law may be thus accurately represented—supposing two or more foreigners in this country conspire together to commit a crime abroad, although the thing which they conspire to do is a crime, yet, if it be committed abroad, it would not be punishable by the law of this country; neither is the conspiracy punishable. Now, no one who read what I then uttered would think of disconnecting these two sentences. No one with ordinary candour or ordinary intelligence would read the first sentence as containing the proposition, that an alien may come into this country and here commit with impunity acts for which a British-born subject would be punishable. But the two propositions show plainly that an alien may come to this country and plot with impunity the commission of an act abroad which a natural-born British subject could not do. In that respect, therefore, an alien, although standing in the position of owing allegiance to your law, is under that law exempt from consequences to which a natural-born British subject would be liable. Now, what does the House suppose that I was elsewhere represented to have said on the occasion? The passage that was read elsewhere was that first quoted by me. A grave and learned speaker said:— I find in the public journals the following words attributed to the Attorney General: The state of the English law I believe to be this— that foreigners are able to do in this country that which your own subjects are unable to do: and that which would be a crime in natural-born British subjects is a matter of impunity in foreigners. The grave and learned speaker goes on to say: — That is not the law of England, and it is of the last importance it should be known to the country that that is not the law of England. There is no distinction whatever between natural-born British subjects and aliens with regard to acts committed within the realm of England. Now, the other learned persons whom he was addressing had never read the speech from which that extract was taken. It was represented to them that I held the doctrine that an alien might with impunity commit any crime in this country. They were astonished at such a proposition; whereas it is perfectly clear if the whole, or even another passage had been read, the proposition which I maintained was only this, that anterior to the 9th of George IV., according to the common law of the land, a British subject committing a murder abroad was not amenable to English law; that that state of things was altered by that statute, but that it was so worded that it did not comprehend aliens resident in this country within its provisions; the result, therefore, was plain, that an alien not being comprehended within the statute is not in the same position as a natural-born British subject, but is in the same position that natural-born subjects were previously; and I argued that we ought to amend the law in that respect. There has been, therefore, I must say in that particular, one of the most extensive misapprehensions and (of course unintentional) misrepresentations that it is possible for any one to conceive. The whole of the address of the grave and learned speaker dwells simply upon that passage which he read, as comprehending the whole of the argument which I addressed to this House. In the rest of his address the speaker proceeded to represent that the doctrine of conspiracy in this country was a doctrine laid down and recognized in such a manner by all the writers on the law that it would comprehend the act of aliens conspiring in this country to commit a murder abroad. And accordingly he put it thus—that the law of conspiracy in this country comprehends all persons combining to do anything that is malum in se. Now, the way in which I stated the law on that subject was this—I stated to the House that unquestionably there were some general and loose definitions of this elastic principle of our law as to conspiracy, but that they had never been followed out by any decision and were not illustrated by any precedent or any decided case; and, therefore, the words that I used were that it was unsafe to rely upon such expressions of that principle, and that one of the greatest Judges in this country had said that it ought not to be carried any further than it had been carried. The statements that I made are confirmed by the opinions of the profession. I have had assistance tendered to me from every quarter on this question. Representations have been made to me by several of my learned Friends—by men most competent to speak on the subject—that they have searched every book and every decision relating to the law of conspiracy with a view of discovering therein the doctrine laid down by the noble and learned speaker, and have not been able to do so. What then will the House think was the next proceeding of those grave and learned men in another place, was to advert to a sentence pronounced by the assembled judges of England in the case of an unfortunate man who was convicted and hanged, and they pointed out that that sentence might be erroneous. I think the House will see that it is most unfortunate a learned Judge should commit himself to a statement which he might find most inconvenient when called on to act in a judicial position. I have felt it my duty to bring this matter before the House, and I believe the House will admit that great inconvenience and an enormous amount of disorder much to be deplored will result if this practice of Members in one assembly criticising individuals in another be continued. My own desire has been in these observations to set myself right with the House, and to do that through the means of bringing before you these provocations, these attacks, which have been made from time to time on Members of this House, which I trust the House will consider were uncalled for, and which, if continued, will lead unquestionably to consequences of the most unfortunate character. I thank the House for its kind and patient attention. I trust I shall never again have occasion to make a statement of this kind.


said, he did not rise for the purpose of reviving a former debate, but to make one or two observations which he thought called for by the statement of the hon. and learned Gentleman, for whom he entertained feelings of sincere friendship. The House should bear in mind that a dignified deference from one House to the other was the keystone of their co-operation, and it was not desirable to see Members of one House speaking at Members of the other, or setting one House against the other. If such a course were pursued, both Houses must suffer in public estimation, and their powers of doing good must fail. The statement of his hon. and learned Friend on a former occasion had, from his position as the first law adviser of the Crown, become public property, and when he beard that statement he shared in the astonishment which had been expressed with regard to it. The remarks to which his hon. and learned Friend had called attention, and which were made in that mysterious ''other place" to which reference had been made, appeared to have been expressed with the greatest possible temper and dignity—


rose to order. He understood that the House had permitted the hon. and learned Gentleman (Sir R. Bethell) to make an explanation, but he did not think that the Standing Orders would permit a discussion to be raised on the matter.


expressed an opinion that the hon. and learned Member had not yet put himself out of order.


continued. He had taken a part in the former debate, and he felt a deep interest in the state of the law being laid down and acted on for the safety of the inhabitants of these realms, and for the sake of their character abroad. His hon. and learned Friend had stated that if a dozen foreigners came here and concocted a crime, and went abroad to commit it, and then came back to this country — ["Order, order!"]


said, that he had expressed his opinion that while the hon. and learned Gentleman was referring to the statement made by the hon. and learned Gentleman opposite (Sir R. Bethell) he was perfectly in order; but he was now going beyond that point, and was referring to a speech made in a past debate.


would only say, before sitting down, that he had carefully considered what had been said by his hon. and learned Friend opposite, and he did think that it was the duty of a noble and learned Lord charged with the duty of administering the law of this country not to suffer serious misrepresentation and misapprehension of a most important part of our criminal law to go forth unanswered and unnoticed. He thought it would have been quite as well if his hon. and learned Friend had confined himself to his own vindication, instead of speaking of the chief administrator of the law of England as capable of garbling extracts and misrepresenting what had passed in that House.


said, that as his Lou. and learned Friend opposite, in his very able speech, stated what he believed to be the law, he (Mr. Whiteside) felt it his duty to say that he believed that the expositors of the law in another place had stated the law as it truly is. Nor did he believe that, because the assistants of his hon. and learned Friend had failed to find a case for him, that the general principles of the law of this country had been erroneously stated by the learned and distinguished personages in another place.

Motion agreed to. House at rising to adjourn till Monday next.