§ MR. T. S. DUNCOMBEsaid, he begged to call the attention of the Home Secretary to the question which stood upon the paper in his name. He maintained that the House had no right to suspend the issuing of the writ for the boroughs of Gloucester and Wakefield, upon the ground that there was nothing before the House to warrant that procedure. He himself had moved at an early period of the Session a Resolution in that House which would have had the effect of giving the House a ground upon which to suspend the issuing of the writs. He had proposed to bring in a Bill to enable the constituency of those two places to exercise their franchise under the protection of the ballot. While that Bill was pending it would, no doubt, have been perfectly constitutional to suspend the issue of the writs; but the House had not thought proper to adopt that Motion. Upon what ground, then, could the House suspend the issuing of the writ. There was no ground except the pleasure of Her Majesty's Government. Whenever writs had been suspended, a Motion had always been before the House in reference to some case of alleged bribery. No proceeding of the sort was then before the House. On that account he asked the right hon. Gentleman under what authority and for what purpose he was withholding these writs. It was quite true that the executive of the Crown was invested with the power of issuing writs; but why was it invested with that power? For the purpose, he maintained, of expediting the matter, and not for delay. The House had enfranchised by an Act of Parliament the boroughs of Gloucester and Wakefield, and that being so, nothing but an Act of Parliament could deprive them of their right to be represented. Unless, therefore, the House were prepared to disfranchise them, or to enlarge the limits of those boroughs, it had no right to suspend the issuing of the 1743 writs. As to Gloucester, a Report had been made by the Commission which completely exculpated both the candidates from bribery, and these gentlemen had received certificates. As to Wakefield, both the late Member and the opposing candidate were at that moment under an order for prosecution for a misdemeanour. He would ask, could two-thirds of that House with clean hands order the late Member to be prosecuted? He hoped no prosecution would take place. It would do no possible good. If such prosecutions wore right, why had they not taken place in the instances of Canterbury, Cambridge, Maldon, Barnstaple, and Hull? In the case of those boroughs, Commissioners were appointed, and reported that both bribery and intimidation had taken place; but the Members had not been prosecuted. Why should they now turn round and prosecute, when the individual, as far as they could judge, had given his evidence candidly before the Commissioners? The Corrupt Practices Act and the Act that enabled Parliament to issue those Commissions, were not passed for the purpose of prosecuting individuals, but for the purpose of ascertaining the extent of the bribery, corruption, and intimidation that prevailed in certain boroughs, with the view of seeing if some remedy could not be discovered by which that bribery, corruption, and intimidation might hereafter be prevented. The Acts were not directed against individuals, but they now proposed to satisfy themselves with prosecuting individuals instead of going into the whole question. To prosecute Mr. Leatham and Mr. Charlesworth was an act really unworthy of the House, and he hoped that the hon. and learned Attorney General would move that the order be discharged. He begged leave to ask the Secretary of State for the Home Department if, in consequence of the bribery and corruption reported to prevail at Elections for the City of Gloucester and the Borough of Wakefield, Her Majesty's Government has anything to propose upon the subject; if not, by what right, and for what purpose, he delays the issue of New Writs to those places?
§ MR. MONCKTON MILNESSir, before any Member of the Government rises to answer this question, I wish to say, locally interested as I am, and having had a long personal connection with one of the boroughs to which my hon. Friend has alluded, I cannot agree with him that the suspension of these writs, for the present 1744 at least, is not demanded both by public opinion and public justice. I believe that suspension is in itself a very severe punishment, and is felt to be so by the constituencies which have thus offended, and that it is also a punishment of the right kind. The offence is solely one of a political nature, and the punishment ought likewise to be solely political. I cannot, therefore, help thinking that the selection of one or two gentlemen of no especial culpability or viciousness of character, in order to hold them up as objects of public obloquy, is not a dignified proceeding on the part of this House, nor one likely to lead to any remedy for this great public evil. But in this case the painful position of these two gentlemen, with both of whom I have the honour to be personally acquainted, is most seriously aggravated by the peculiar constitution of the Commissions appointed by the House for inquiring into the corruption of delinquent boroughs, because by the very fact of issuing such a Commission, with its form of process, you hold out every inducement to the persons examined before it to make a clean breast and give every evidence in their power, even, it may be, against themselves. What is the meaning of that? Why, that much as you regret individual error, much as you abhor that low tone of political morality which allows men to traffic in votes themselves, or to incite others to do so, nevertheless your end is a public, not a personal one, and therefore you, as it were, encourage these avowals of past political delinquency to secure a future public good. But in refusing these two gentlemen those certificates of legal impunity which in these cases are generally so freely given, you not only render them liable to the unhappy consequences of a penal prosecution, but—which is far more serious—you imply that they have not acted honourably in the face of the Commission, and have not told it all that they knew about the matter. Now, from my personal knowledge of these gentlemen, I am convinced that the fact is quite different; that, whatever may have been their political errors, yet, appearing as they did before these Commissioners, and being asked as gentlemen to disclose on their honour what they had done, the evidence they gave was the truth and the entire truth. Therefore I would appeal to the Government not to press so cruelly and so partially on these two persons; because I am certain the public effects of such a harsh course will not be good; but 1745 that, on the contrary, it will be said there is some hypocrisy in the conduct of this House, that we are not acting sincerely or simply from a wish to eradicate this evil, but are ready to sacrifice two unfortunate gentlemen who may, from some accidental circumstance, have rendered themselves specially obnoxious to the law, and that we are doing this instead of endeavouring to discover, through the highest political sagacity we possess, by what means we can extirpate this disorder from the State. I implore the Government, then, not to continue a prosecution so unworthy both of themselves and of this House, but rather to set about the search for a remedy by totally different measures.
§ MR. DARBY GRIFFITHsaid, the noble Lord the Member for the City had acknowledged, in 1852, that the most appropriate way of dealing with such cases was to transfer the franchise from a borough proved to be corrupt, to another locality, and he considered that there was more justice in that proposition than in what had been urged by the noble Lord at a later period. Anything less than a suspension of the writs for ten years in the case of the peccant boroughs would be an inadequate punishment for their delinquencies. Indeed, it would be better to transfer their franchises altogether to other and purer constituencies. If such grave constitutional offences were to be treated with leniency, the country would put no faith in the sincerity of the House's professed abhorrence of electoral corruption. To suspend the writs, as had been proposed, merely till another Session, when it was intended that the franchise should be brought down to a lower and, if possible, even more venal class of voters than at present, would be to condone and encourage that very corruption which they all professed so much anxiety to repress.
§ MAJOR EDWARDSsaid, he entirely concurred with everything that had fallen from the hon. Member for Pontefract (Mr. M. Milnes). He happened to be well acquainted with both of the individuals who were the subject of that discussion, and he was satisfied that what they had already suffered through the prosecution hanging over them was quite sufficient punishment for whatever offences they might be supposed to have committed. He was therefore persuaded that the hon. and learned Attorney General would gratify every Member on both sides of the House if he were to rise and announce that the legal period 1746 for it having now expired this prosecution would not be carried any further.
§ MR. COLLINSsaid, he hoped the Government would not consent to the issue of the writs for either of these boroughs during the present Parliament. There were grave objections, however, to their disfranchisement. The hon. Members for Glocestershire and the West Riding of Yorkshire doubtless would not like to have these corrupt towns merged in their respective constituencies. It would be better to suspend the writ for five years.
§ SIR HUGH CAIRNSI wish to call the attention of the House to one view of this case, which appears to me of great importance, and with regard to which we may find ourselves in a difficulty if we proceed without considering well the course about to be taken. I shall not now say a word as to the general question of the best and most philosophical mode of treating boroughs which have been found guilty of great corruption. I wish to speak of an entirely different subject. My hon. and learned Friend the Attorney General a few nights ago informed the House, in answer, I think, to a question, that even although the time had expired for what we may call the statutory prosecution of the candidates at the late election for one of these boroughs, he believed, I dare say most correctly, there was room for an indictment against them for misdemeanour at common law, and that it would be his duty, as he conceived, to direct such an indictment to be brought forward. Now, it is very important that we should not, from a desire existing, no doubt, upon both sides of the House to repress corrupt practices of this kind, take a step which may have, or which may be represented out of doors as having the appearance of very great injustice towards these two gentlemen. I have not the honour of the acquaintance of either of those gentlemen, and I am only anxious to prevent the House committing an injustice by proceeding rashly in this matter. The House has often had its attention called to the Act of 1852, which authorized the making of these inquiries into corrupt practices at elections, and it knows that very precise and somewhat unusual clauses were introduced, and certainly not the least conspicuous of them is the clause which holds out to every person who may be called upon to give evidence before these Commissions the promise that if he gives full and fair evidence he shall be protected from all penal consequences what- 1747 ever. That clause is so strong that I hope the House will allow me to read it. It runs as follows:—
IX. For the more effectually prosecuting any inquiry under this Act, every person who has been engaged in any corrupt practice at or connected with any election of Members or a Member to serve in Parliament for any county, division of a county, city, borough, University, or place to which any inquiry under this Act relates, and who is examined as a witness, and gives evidence touching such corrupt practice before the Commissioners appointed under this Act to make such inquiry, and who upon such examination makes a true discovery to the best of his knowledge touching all things to which he is so examined, shall he freed from all penal actions, forfeitures, punishments, disabilities, and incapacities, and all criminal prosecutions, to which he may have been or may become liable or subject at the suit of Her Majesty, her heirs, or successors, or any other person, for anything done by such person or persons in respect of such corrupt practice; and no person shall be excused from answering any question put to him by such Commissioners on the ground of any privilege, or on the ground that the answer to such question will tend to criminate such person.Observe what is the consequence of that. You tell all persons who are summoned to give evidence before the Commission that, provided they make a full and fair discovery of everything, to the best of their knowledge, they shall be indemnified against every possible consequence that may happen; and more, that they are not to have that which is the ordinary protection of every subject of the realm, they are not to be allowed to refuse to answer a question on the ground that the answer may criminate them. They cannot do what the meanest witness in any of the courts of criminal jurisdiction can do; they cannot say, "I decline to answer that question because my reply may subject me to criminal prosecution." The answer would be, "No, it won't; if you tell the truth as to what you know you are indemnified by the clause in the Act of Parliament." The question may arise. "Is not that sufficient? How can there be any room for a prosecution against these gentlemen?" The only room for a prosecution arises from the next section, which provides that, in order to make their indemnity perfect, in order to enable them to plead it before the courts, they are to have a certificate under the hands of the Commissioners. Now, I apprehend that the meaning of that clause was clearly this, that the Commissioners who took the evidence should judge whether the witness who gave the evidence had made a full and fair discovery of every- 1748 thing within his knowledge before they gave the certificate in question. Now, what has happened in the case of the Wakefield election? Two gentlemen who were candidates at that election wore examined at great length and in great detail before the Commissioners. I have looked only cursorily at the report of their examinations; but it does seem to me that nothing appears upon the face of the proceedings which would enable any one reading the evidence to say that the persons giving it had not made a full and fair disclosure to the best of their knowledge. The Commissioners may have thought differently; the certificates have not been given to those two gentlemen. Now, my proposition is this:—I do not wish the House to limit the power of the Commissioners as to giving or refusing these certificates; but I do ask that when upon the face of the proceedings, as reported by the Commissioners, and laid before us, a witness appears to have made a full disclosure, but no certificate has been given to him, the House shall not make itself a party to his prosecution, without requiring the Commissioners to state why they refused to give him the certificate. In this case the Commissioners have made their Report, and have assigned no reason whatever for refusing these certificates. They have not said, "No matter what may appear upon the evidence, the air and manner of the witnesses were such as to lead to the belief that they had not made a true discovery, to the best of their knowledge, touching the things upon which they were examined." Had the Commissioners made such a Report to Her Majesty, I have no doubt that the House would have been satisfied with it, and would have given them credit for having formed a true judgment. But what I say is, that it behoves the House of Commons, before it directs, or invites, or urges a prosecution of these gentlemen, to have made known to it, in some way, why it was that they were deprived of that largo promise and inducement, which is held out, before examination, to witnesses, on condition that they answer truly and to the best of their knowledge. Just observe the position in which these gentlemen are placed. They cannot go to any Court of Appeal from the Commissioners, and say, "We ought to have had certificates, but have not got them;" nor could they, before giving their evidence, demand their certificates, because the Act of Parliament says, "You cannot have a certificate until you have given your 1749 evidence." Therefore, this is the state of things. The Commissioners refuse the certificates without assigning any reason; and these gentlemen have no appeal, have no means of insisting upon those certificates being given to them. They have done all they could. They have given all the evidence which they might have refused to give, had it not been for this Act of Parliament, and they are now left to a prosecution, which this House urges the Attorney General to undertake. I know there is no man in the House whose feelings of justice and propriety might better be trusted, than might those of my hon. and learned Friend, and I put it not only to the House, but also to him—although I know that in this matter he is acting more upon what appears to be the wish of the House, than upon any opinion or judgment of his own—whether the House of Commons, if it encourages or urges on this prosecution, may not be doing an act of the grossest injustice. It may be that there was a good reason for refusing these certificates; but the Commissioners have assigned none, and I say that, from all that appears upon their Report, we must presume that the witnesses gave their evidence upon the faith of this Parliamentary contract, and that they gave it fairly and truthfully; because I do not find that the Commissioners anywhere censure them for giving testimony of a different kind. If that is so, do not, for goodness' sake, let us, affecting a desire to punish and repress bribery and corruption—which I have no doubt we all feel—do not let us, simply because we can lay our fingers upon two individuals, urge a prosecution against them; at all events, without knowing why it is that they have not got the protection which the Act of Parliament promised them.
§ MR. MALINSsaid, he took very much the same view as his hon. and learned Friend who had just sat down; but he wished to add to his statement a fact which he considered to be of great importance. His hon. and learned Friend was right in stating that the Commissioners had not assigned their reasons for refusing their certificate; but he (Mr. Malins) had been informed by Mr. Serjeant Pigott, the senior Commissioner upon the Wakefield inquiry, that he thought that Mr. Leatham ought to have had his certificate, but that it was refused in consequence of the other two Commissioners, Messrs. Willes and Slade, being of a different opinion. The section quoted by his hon. and learned 1750 Friend amounted in reality to a Parliamentary contract with any person whom it might induce to give evidence, for if it were not so, let them consider what would be the position of persons who gave their evidence before the Commissioners. Having come there on the faith of a Parliamentary contract, and made a full disclosure of everything he knew, the witness would find himself at the mercy of the Commissioners, who might rightly or wrongly refuse the certificate. Now, in the case before the House, the chief Commissioner might have been wrong, and the junior Commissioner might have been right; but a higher question was raised, and that was whether, there being clearly a doubt, the House would not, acting on the well-known principle of the law, take a merciful view of the case, and giving the accused the benefit of the doubt, withdraw from the prosecution? He wished something could be done to show the determination of the House to prevent the continuance of bribery and corruption; still they were bound to act mercifully, not harshly, and above all they were bound to bear in mind the Parliamentary contract which the Act of Parliament made with the witnesses. There was another point he wished to press on the attention of his hon. and learned Friend the Attorney General. When, in the course of the debate, upon the issuing of the Berwick Commission, he referred to what had taken place at Wakefield, he by no means intended to urge upon the Government that they should undertake a prosecution which, if instituted at all, ought to have been instituted directly the facts became known. The 14th section of the Corrupt Practices Prevention Act provided that all proceedings under it should be commenced within a year after the Commission of the offence; but all these transactions occurred in April, 1859, and therefore the year had already expired. He submitted that the Government would not be justified in instituting a prosecution where there was a serious doubt whether the result would be favourable, and upon the whole he was decidedly of opinion that no further proceedings should be taken against individuals in the present case.
§ MR. MELLORsaid, he took a somewhat different view of the reasons which ought to influence the House in its consideration of this matter, from his hon. and learned Friends opposite, though he arrived at pretty much the same conclusion. It appeared to him that an election Commission 1751 was intended to be, not a mere instrument for the prosecution of individuals for bribery, but a body to ascertain the extent to which corruption might prevail in a particular borough, with a view to legislative action. He therefore believed that it would be attended with the greatest danger to the success of such Commissions, if the strictest faith was not kept with the parties who came before the Commissioners to give evidence. In that particular case he had looked into the evidence, and he was at a loss to discover the grounds upon which a certificate was refused to Mr. Leatham. The differences of opinion between the Commissioners, stated by his hon. and learned Friend, were an additional reason why the prosecution should not be carried on; and he was certain that great mischief and inconvenience would occur if it were undertaken. As to the issue of the writ, it was known to every body that the Corrupt Practices Committee had recommended that for the future, when extensive bribery had been found to prevail in a borough, the writ should be suspended for a period of five years, without prejudice to the right of the House to take stronger measures by way of whole or partial disfranchisement. His chief regret was that hitherto the House had not disfranchised the borough where extensive bribery had prevailed, transferring the privilege to some other place; and, at all events, he hoped that in the present instance the Attorney General would seriously consider whether it could with propriety institute prosecutions against individuals.
§ MR. EDWIN JAMESsaid, he fully concurred in the statement of the law given by the hon. and learned Member for Belfast (Sir H. Cairns), and he had the authority of Mr. Serjeant Pigott for stating that, in his opinion, certificates ought to have been granted upon the ground that when the Commission was opened the parties were informed that if they came forward and made a full disclosure the Commissioners had power, under the Act of Parliament, to grant them certificates of indemnity. There would be great difficulty before a special jury in Westminster Hall in convicting any gentleman to whom it had been held out that if he made a full disclosure a certificate of indemnity would be granted. If a magistrate went into the cell of a prisoner and assured him that if he made a disclosure of the crime alleged against him he would receive a certificate of indemnity, no Judge on the bench would allow a state- 1752 ment so obtained to be recorded against the prisoner on a criminal trial.
THE ATTORNEY GENERALThe Addresses to which the House has listened have certainly placed me in a very painful position, because I must speak to you in a manner which must appear rather ungracious after the speeches you have heard from my hon. and learned Friends. They have told you things which are highly creditable to their humanity, their feelings as Gentlemen, and their kind consideration of the circumstances of the case; but undoubtedly not creditable to their reputation as lawyers. I have not heard a single argument broached that would for one moment be listened to in a court of law; but at the same time there have been many observations made, which, on the ground of humanity, may well be deemed worthy of attention in an assembly of Gentlemen. But you must remember that you have placed me in a false position, because you have delivered Addresses concluding with no Resolution. If the House has heard sufficient to influence their decision, declare an opinion at once that, under the circumstances, it is the duty of the Attorney General not to proceed with these prosecutions against individuals. No man in the House would more joyfully acquiesce in that conclusion than I; but it is impossible for you to leave me exposed to the whole weight of a public duty, and imagine that I can feel myself adequately discharged from that onerous obligation in consequence of certain Gentlemen, however much they may be entitled to respect and attention, having addressed a few speeches to the House characterized by feelings of humanity, kindness and forbearance. I cannot act upon addresses, however generous and humane; but if any hon. Gentleman will come forward with a Resolution, I shall certainly not oppose a single word to its adoption by the House. One or two points have been mooted, upon which I may be permitted to make a few remarks. Nothing is more to be deprecated than that you should constitute yourselves a Court of Appeal from any description of judicial authority, and I am extremely sorry that the kindly feelings of the hon. and learned Member for Belfast should have induced him to forget the lawyer in the man, because, undoubtedly, election Commissioners are armed with a great judicial authority. I am sorry to find that one of them has made that communication to which the hon. and learned Member for Marylebone (Mr. James) 1753 has referred, because he was bound by every consideration not to impeach the judgment which the majority of his colleagues gave, and my hon, and learned Friend (Mr. James) will permit me to say that so unadvised and indiscreet a communication ought not to have been stated to tins House. [Mr. E. James: I had his authority for stating it.] Then I regret it the more, because he was in a minority of three Judges, and he was bound to uphold the judicial decision which the majority had pronounced, and not to impugn it. But, I repeat, you should not constitute yourselves a Court of Appeal from those to whom you have intrusted a judicial duty. If you do so, who in future will be found willing to undertake that duty? Nor, I submit, can you properly call upon the Commissioners to state the grounds of their decision! You might as well call upon the Court of Queen's Bench to explain the reasons of their judgment in a particular case. You cannot sit in judgment on the Commissioners. They can determine what is committed to them by law, can judge of the credibility of a witness not only by the terms in which he couches his answers, but by his demeanour and appearance before them, and you have not the means of deciding as to the manner in which they discharge their duty. What the Act of Parliament has done is this:—the certificate of the Commissioners is the only evidence which the law permits to be offered that a witness has given satisfactory answers to the questions put to him. If a witness does not obtain that certificate, the law is bound to conclude that in the judgment of the Commissioners the witness was not entitled to the indemnity, though the Act of Parliament prevents his evidence being used against him. Therefore you do him no injury. You do not give him the indemnity, but at the same time what he has said is not to be used against him. The Act of Parliament itself protects him against any prosecution based upon evidence given by him the tendency of which would be to criminate himself.
§ SIR HUGH CAIRNSIs that so?
§ SIR HUGH CAIRNSI do not find it in the Act.
THE ATTORNEY GENERALYes, it is so, undoubtedly. And when my hon. and learned Friend speaks of the senior Commissioner reading the Act of Parliament to the witnesses, as if that would 1754 make any difference, I am astonished at his observations. The Act of Parliament is known to every one, and it cannot affect the case one way or other whether it was read or not read to the witnesses by the Commissioners. Another element for our consideration, however, has been introduced in the course of the discussion—namely, that it is doubtful whether the time has not expired within which a prosecution ought properly to be instituted. If there were any doubt upon that point in my own mind, or in the mind of those to whom I have resorted for assistance, I should be most glad to give the accused persons all the advantage of it; but I have not the slightest doubt with respect to it. The limitation of time has no application to a criminal prosecution for misdemeanour; and the hon. and learned Member for Belfast misunderstood what I stated the other night. What I then said was, that I should prosecute for misdemeanour under the statute. If I had a doubt of the propriety of that mode of proceeding, I should not hesitate to resort to the common law; but I have no doubt, and, therefore, the prosecution will be under the statute. If I am wrong, though I think I am not, the accused will have the benefit of the error and will be protected by the Act of Parliament. The hon. and learned Member also spoke of the prosecution as if it had been directed by the House. [Sir H. CAIRNS was understood to explain that he said that it was urged, not ordered, by the House.] It was, indeed, urged by the House on a variety of occasions, unless this House has been guilty of the most solemn mockery and hypocrisy. You have urged it by passing the statute. Is that Act to be a real thing, or a mere piece of hypocrisy and imposition on the public? It has been urged again and again, and by no one more earnestly than by the hon. and learned Member for Wallingford (Mr. Malins), who blamed the Government for issuing Commissions which were productive of no good at all. And why were they productive of no good? Because, when the time comes for action, the House of Commons shrinks from enforcing the statute, and there is no one here who will throw the first stone. If that is to be the principle on which you act, confess it, be consistent, and repeal the Acts. But while those Acts of Parliament remain, and you have returned to you a mass of evidence which proves that there has been corruption in the grossest, most extrava- 1755 gant, and exaggerated manner, while this is brought publicly to the notice of the Attorney General, and the Attorney General is willing to perform his duty, I say you must allow him to perform it. Undoubtedly, you will be glad that those things which you affect to treasure so highly—namely, your enactments—are about to be tried, and that it will be shown whether this statute was passed for a real purpose or not. Such is the question, I say, that is about to be tried, and will be tried unless you come in to the rescue of those who are accused, and by a Resolution of the House, take off from the Attorney General that responsibility from which, as an individual, he would be most thankful and most happy to be relieved. Sir, I have undertaken this duty, as I hope everybody will give mo the credit for, most unwillingly; but the conviction has been forced on me that unless the whole thing is to be given up as a farce and a piece of hypocrisy, it is my bounden duty, in the position I occupy, having first ascertained that I have, as I believe I have, all the materials for a conviction, to enforce the law. But, now, remember, you introduce an exceptional case with regard to Mr. Leatham. It may be, and I think it was, a very hard case. But remember this—if you pass a Resolution with respect to Mr. Leatham—
§ SIR HUGH CAIRNSI did not allude to him particularly. I spoke of both.
§ MR. MALINSIt was I who particularly mentioned Mr. Leatham.
THE ATTORNEY GENERALWell, what I wish you to understand is this—that if you choose to take exception to the judgment of the Commissioners in the case of Mr. Leatham, I decline to prosecute any of them. For how can I tell that they may not have erred as greatly with regard to the rest as with respect to him? I will tell you what I have done. I have selected eight of the greatest culprits (using that word as denoting the greatest delinquents according to the evidence before me), and I have taken them without any difference or distinction, other than that four have been selected from the one side of politics and four from the other. Within two days, proceedings, I trust, will be commenced against them. I shall commit the prosecution of the four belonging to the one side to gentlemen of the bar, who are generally supposed to be of the opposite persuasion in politics, observing a similar impartiality with reference to the 1756 other four. That is the step which, as Attorney General, I shall take, though I repeat I shall be most happy to relinquish the prosecution under the authority of an express declaration by this House.
§ MR. WALPOLESir, I shall not address the House with respect to any particular case, but, understanding this matter was coming forward, I have looked into the evidence and considered the Act of Parliament, and the result of my reflection is, not that my hon. and learned Friend the Attorney General is departing from his duty in what he proposes to do, still less in the reasons he has assigned, but that if these prosecutions be pressed, two consequences must follow:—one, the perpetration of a great act of injustice; and the other, the risk of defeating the objects of the Act of Parliament. I will state my reasons for these two conclusions. I think that the Attorney General has not accurately represented the operation of the Act of Parliament in one particular. If I understand the Act rightly, there can be no defence to any prosecution for bribery instituted against persons who have given evidence before the Commissioners, except pleading the certificate given by the Commissioners, for the Act distinctly says, that where any person is examined before the Commissioners, such witness shall not be indemnified under the Act, unless he receives from the Commissioners a certificate in writing under their hands that he has made a true disclosure touching all things on which he was examined. Therefore, any admission which a witness has made against himself will be used against him, unless he has the indemnity secured by the certificate. The Attorney General seemed to think that under the 9th section of the Act the witness is protected from all the consequences of an admission against himself, that section declaring that the witness shall be free from all penalties, actions, forfeitures, disabilities, and criminal prosecutions. But he is only to be free from them, according to the same section, if on examination he makes a true disclosure of facts, and the only mode of testing that point is by the certificate of the Commissioners. If, therefore, the certificate is withheld, a prosecution may be instituted and a man may be convicted on admissions made by himself, although he is bound as a witness before the Commissioners to answer every question, notwithstanding that the answers may tend to criminate himself. If that be the true construction of the sta- 1757 tute, only conceive what you are about to do. You not only induce witnesses to come forward to disclose bribery and corruption, but you also say that those witnesses shall not be entitled to the ordinary protection which every accused person in this country has of not answering a single question, tending to criminate himself. Can that be a proper course either for the House or the Attorney General to pursue, if you mean to make use of the Act for the fair purpose of stopping corruption, but not for prosecuting individuals with undue severity on account of admissions which they would not have made if they had not thought themselves entitled to protection? I quite agree if a witness before the Commissioners had apparently not made a true disclosure, had prevaricated, and kept back the truth, then protection should not be extended to him; but in the Report of the Commissioners with respect to this particular case there is not one tittle of evidence to show that these persons from whom certificates were withheld had prevaricated or abstained from disclosing the truth so far as it was within their own knowledge. If so, they have performed their part of the Parliamentary contract, and we are bound to perform ours. Now, I have read the evidence of Mr. Leatham. I cannot say that, according to the evidence, Mr. Leatham has behaved with discretion or with prudence; and anybody may well suppose that he was led into the commission of acts for which he must now himself be sorry. But I cannot find one word in the evidence which tends to show that Mr. Leatham kept back any facts which it was important for the Commissioners to learn. If he has given a truthful relation of facts, you may make use of them and derive benefit from them in dealing with the case of Wakefield; but, assuming their truth, I think Mr. Leatham is entitled to a certificate of indemnity. See what the consequences of such a prosecution will be as regards the statute, and the offence to which the statute applies. If you proceed against the persons from whom a certificate is withheld, they not being open to the charge of having given unsatisfactory evidence, what witnesses will you ever get to come before such Commissions for the future? Your hands will henceforth be tied, the whole object of the Act of Parliament will he frustrated; you will have no means of ascertaining whether corruption exists or not, if you institute such prosecutions. The 1758 Attorney General says, and very properly, that, he ought not to be put in a position where he may be reproached for not prosecuting, when, in point of fact, he is willing to discharge that duty. In this I quite agree with him, and think he would be quite justified in going on with the prosecution, until, at all events, good reasons were adduced in this House to satisfy him that an injustice would be perpetrated if it were allowed to continue. I believe that an injustice would be committed by a conviction obtained through evidence given in the belief that the parties concerned would receive a certificate of indemnity; and believing that, I will not be a party to such a prosecution, but will join with those who have urged the Attorney General not to proceed any further in this matter. If blame is to attach to anybody, let it attach, not to the Attorney General or the Government, but to us who suggest the course. The hon. and learned Gentleman has done his duty so far, and I think he will not less discharge his duty now that the facts have been brought before him, if, upon considerations, not of humanity, but of justice and sound policy, he withdraws from these prosecutions.
§ MR. BRIGHTI have some difficulty in saying anything on this matter, because, as the House knows, one of the gentlemen concerned is a near relative of mine. At the same time, there may be some points which have not been laid before the House, but which are familiar to me from my connection with him. The Attorney General has made a speech, Sir, with which I can find no fault. Ii was the speech of a great lawyer. Its law, I have no doubt, was in all points correct, and I do not complain that in his observations he went one hair's breadth beyond the line of his duty. But it is quite possible that everything he said may be true, and that at the same time everything else which has been said in the House to induce him not to proceed with these prosecutions is also true. It may be perfectly true that those gentlemen—and I may mention in particular the name of Mr. Leatham, in whom, it may be supposed, I take a somewhat warm interest— it may be true that they have been examined by the Commissioners, that they have not received a certificate, that the funds which they supplied have been expended in bribery, and that they are open to prosecution by the Attorney General; but I will put before the Attorney General, in two or three sentences, the case as it is 1759 presented to my mind, and I will not colour it too warmly because I have an immediate interest in one of the gentlemen. One of these gentlemen—Mr. Leatham, if you like—comes before the Commission. He is especially told of the Act of Parliament. On the opening of the Commission the Act is read in public Court, and witnesses are told, "If you make a full disclosure on all the matters about which you are examined, a certificate of indemnity will be given you." Mr. Leatham lived in the neighbourhood; he attended the Court several days; but he was only once examined. Not a single syllable was said by any one of the Commissioners during the examination, or after it, to show they regarded his evidence as unsatisfactory and incomplete. He might have been examined any day. He was there ready to answer any question which might have been suggested by the evidence of other witnesses. But neither when he was under examination, nor at the conclusion of it, nor at the termination of the inquiry, nor at any time, was there an intimation to him by the slightest word or look that the Commissioners were dissatisfied with his evidence. If they had said to him "There appear to be discrepancies in certain points. Can you clear them up?" he would have been most ready to do so if he could. But nothing of the sort was done, and therefore he left the Court with the perfect assurance that he had done all which the Commissioners expected from him, that the contract would be fulfilled, and that in due course of time a certificate would be sent to him. He had made a full disclosure. I speak, knowing the facts as completely, I believe, as Mr. Leatham knows them himself. Well, then, the Report comes out, and he finds that, without any statement made, without any reason given, without any fault found, the certificate is withheld from a certain number of persons, including himself. He immediately applies by letter to the Home Office, and takes steps to ascertain whether it was possible for him by the re-opening of the Commission, by application to any Court of Appeal, or by any other mode, to make a further statement if anybody chose to ask him anything further, in order that he might obtain the certificate, and remove the imputation that his evidence given on oath had not been as satisfactory as the Commissioners had a right to expect. I will not say that the Attorney General is not right in his law, but I think the House will feel at once that this is a case of 1760 grievous hardship, and I think the hon. and learned Gentleman admitted it. He says this House is not a Court of appeal. But if the Act of Parliament does not establish any Court of appeal, there still is one—namely, the consciences and the love of justice which prevail, I believe, universally among hon. Members of this House in matters of this nature.
THE ATTORNEY GENERALI did not mean for a moment to dispute the authority of this House. On the contrary, if it expresses its opinion definitely, I shall at once bow to it.
§ MR. BRIGHTI may have expressed myself too warmly, but I say again that I do not find fault with anything which the hon. and learned Gentleman said. He made an observation respecting the Chief Commissioner. Mr. Serjeant Pigott is known to many Members of this House. I have known him for some years, and he is a very good lawyer and an excellent and honourable man. The Attorney General says that he went a little beyond the ordinary etiquette of office in making the communication which has been referred to. Now, as the Act of Parliament docs not allow one of two persons to sign the certificate, and as Mr. Serjeant Pigott found that a grievous hardship was about to be committed, he intimated that, so far as he was concerned, he thought Mr. Leatham had made a full disclosure, and was, therefore, according to the Act, entitled to his certificate. And, moreover, he authorized the hon. and learned Members (Mr. James and Mr. Malins) to make that statement here. There is one point which I should like to put to the Attorney General. He repudiates the notion that the time for instituting these prosecutions is past. I will admit it to be so. But he cannot dispute that so lately; as 1854 an Act was passed "to consolidate and amend the laws relating to bribery, treating, and undue influence at elections of members of Parliament," by the 14th clause of which it is declared that
No person shall be liable to any penalty or forfeiture hereby enacted or imposed, unles some prosecution, action, or suit for the offence committed shall be commenced against such person within the space of one year next after such offence against this Act shall be committed.I am quite willing to agree with the Attorney General that this clause does not apply to the present case in the mode in which he proposes to proceed; but, seeing that this is the very last Act of Parliament on the subject of bribery, and that it is a 1761 consolidation Act, I think it fair to ask the hon. and learned Gentleman to infer with me that the House at that time intended, when twelve months had elapsed after an offence of this nature, that no prosecution should take place. That may be so or not, but so it strikes my mind. I rely, however, on the other point. I say when a gentleman has made a full disclosure, and receives no intimation of his having given incomplete or unsatisfactory evidence—when a Chief Commissioner declares his belief that to withhold the certificate is contrary to an Act of Parliament—I very much mistake the character of the House of Commons, and I think I have mistaken, too, the character of the Attorney General if, under these circumstances, they do not admit it would be impossible to continue these prosecutions. I admit all the Attorney General has said, I see his difficulty. But I think, after the observations which have been made to-night, the facts being now more fully before the House, he will feel that though duty compelled him to commence a prosecution, it will not be inconsistent with his duty to proceed no further with it. I shall say no more, nearly related as I am to a Gentleman concerned in this matter, except to declare that if I was of opinion that that gentleman had acted in a manner which justified a prosecution being instituted against him, although he were my own brothei—so much do I abhor this corrupt system which obtains at elections—I should be the last person in the world to stand up in the House of Commons and shield him from the arm of the law.
§ MR. WHITESIDEThe first discussion on this matter arose from a question incidentally put to the hon. and learned Attorney General. The House however, has never addressed Her Majesty to direct the Attorney General to prosecute. I certainly do not like to have it put to me as an alternative that the House of Commons shall interfere and coerce the hon. and learned Gentleman, against his sense of justice, not to prosecute, but I would say—having been a law officer of the Crown—if it was stated to me that of three Commissioners carrying out the provisions of this Act one was of opinion that a particular witness was entitled to a certificate, and that the others differed from him in that respect, I should hesitate to commence a prosecution under such circumstance. You may prosecute any of these persons for having given false evi- 1762 dence, and the fact that you do not prosecute them for giving false evidence is some proof that they have given true evidence. This Act of Parliament says any person giving false evidence shall be liable to the pains and penalties of perjury. Well, there is no prosecution for perjury in this case, but there is a prosecution for bribery. I think my right hon. Friend the Member for the University of Cambridge (Mr. Walpole) has raised a very nice point under the 8th section of this Act, and I give this warning to my hon. and learned Friend, the Attorney General, that a prosecution in a criminal court is wholly unlike a Chancery suit; that juries, somehow, will always take into consideration many other things besides the evidence in the case. [The ATTORNEY GENERAL—speeches in this House, for instance.] That shows great good sense on their part; and what juryman could be insensible to a speech of my hon. and learned Friend? I thought from what my hon. and learned Friend said on a former occasion, that the evidence he had was evidence which he had obtained from other sources than the Commission itself. I understand my hon. and learned Friend to mean that although he won't use evidence that A. B. gave against himself, yet that he will use against him evidence which C. D. or E. F. gave. But that is just doing the very same thing indirectly that you ought not to do directly. I agree it is difficult for this House to exercise jurisdiction over the three Commissioners, and to say that they ought to have given a certificate where they have not given one; but we have this fact before us, that those gentlemen differed in opinion as to whether a certificate ought to have been granted—the senior Commissioner holding one view upon that point, and the two others entertaining another—and I think that is a case in which the Attorney General should consider well before he prosecutes.
§ MR. MALINSwas understood to say that Mr. Serjeant Pigott had written a letter to his colleagues, stating the grounds on which he had arrived at the opinion he expressed.