HC Deb 11 May 1869 vol 196 cc620-7

, in rising to move the following Resolution:— That whenever any person shall have been called upon by order of this House to give evidence in support or in disproof of any allegation of fact set forth in a Bill of Disability or of Pains and Penalties, it is desirable that such person should be examined on oath, or upon such solemn affirmation as may be most binding on his conscience, said, that, yielding to the suggestion of many Members on both sides of the House, he should conclude by asking permission to add to the terms of his Resolution the following words:— And that a Select Committee be appointed to consider and report on the best mode of carrying this object into effect. He did so because he was satisfied the question would rather ripen by time and further consideration. They had reason to congratulate themselves on having just escaped from the necessity of dealing with a painful question in the nature of a Bill of Pains and Penalties, and he hoped it would be a long time before they had again to consider the question. But it was only when the necessity of a change forced itself on the attention of Parliament that there was any disposition to make practical alteration in their established usages. Hence it was that not many hours ago the most thoughtful men amongst them were anxiously pondering what it might be their duty to do when called upon to vote judicially upon a question of grave importance without the advantage of having before them witnesses on oath whose testimony they considered essential to the formation of an opinion. He found no one who could account for the anomaly that existed between the practice of that and the other House of Parliament. The other House of Parliament always claimed and exercised the right of administering an oath to the witnesses examined at then Bar. It was impossible, in the judgment of many, except by an oath, to search the conscience of a witness suspected of unveracity. He was aware that his hon. and learned Friend the Member for Tiverton (Mr. Denman) was of opinion that they might dispense altogether with the form of swearing witnesses; but so long as every court in the realm acted on the principle that an oath was a useful means of searching testimony, he thought that the House ought to insist on being upon an equality with the other House of Parliament in this matter. They had sometimes sent their witnesses to be by the county magistrates; they had also sent their witnesses to be sworn at the Bar of the House of Lords; but that was a humiliation on the face of it. If the House declared that the practice ought to be changed, it would be the duty of the Government to bring in a proper measure, and carry it through both Houses: or if the House agreed to refer the question to a Select Committee, and that Committee reported that a change was desirable, the Government would, no doubt, carry that report into effect. They might proceed either by Standing Order or by Bill. He believed the House had the inherent power of administering an oath to witnesses at the Bar, and might exercise it under Standing Order; but if a Bill were brought in and sent to the other House he should be greatly surprised if that House refused to pass it. The House of Lords had on several occasions exercised its right to change its mode of proceeding, by passing a Standing Order. In 1695 the right of voting by proxy on Private Bills was put an end to in this manner, and within their own recollection the Peers, after due deliberation among themselves, passed a Resolution, which had all the binding efficiency of a law, that proxies should in no case any longer be received. These, it might be said, were instances of an exercise of authority, only as regarded their own forms of procedure, and in no way calculated to affect the rights and privileges of persons who were not Members of their Lordships' House. But in the case of Lord Wensleydale they exercised the power of refusing to admit him as a life Peer, though he held a patent from the Crown. And this they did in accordance with a Resolution, declaratory of the power and right of the House by its own inherent jurisdiction, without the consent of either Crown or Commons, to say what manner of persons should be of their House, and who should be excluded. He thought it was manifest that this was a much higher stretch of privilege than it could possibly be said to be, if the House of Commons should think fit to declare that they possessed the right to order a wit- ness to be sworn at their Bar. But he did not wish to press that question on the present occasion. Whether by Standing Order or by Bill, he believed the general feeling was that they ought to possess, and, on suitable occasions, to exercise equal powers with those which they acknowledged in the House of Lords. It would be for a Committee comprising persons of experience and learning on either hand of the Speaker to consider how best this power might be asserted, and within what limits, if any, it ought to be placed. An hon. Friend near him (Sir John Esmonde) had given notice of his intention to move for leave to bring in a Bill on the subject. It was no disparagement of his hon. Friend to say, that it hardly lay with a private Member of ordinary weight and influence to attempt the carriage of a Bill of this nature; and he doubted whether, under any circumstances, the House would be induced to sanction a constitutional change so grave;, and so important without first taking the advice of a Select Committee. If the Report of such a Committee recommended the alteration, it would then be the duty of the Executive Government to frame a suitable measure for the purpose of carrying the recommendation into effect. The hon. Member concluded by moving his Resolution.


in seconding the Motion, observed that it was only reasonable that the House should seek to enjoy itself that power of examining witnesses upon oath which it conferred upon its Committees. He thought the proposal a very moderate one. It was that a Committee be appointed to consider the circumstances under which this House ought or ought not to examine witnesses on oath. It appeared to him that when the House conferred on their Committees up-stairs the power of examining witnesses on oath—in other words, gave them power to use an instrument for ascertaining truth, and when it was remembered that in former days the witnesses examined before the Lords' Committees on oath gave evidence contradictory and even antagonistic when examined before the Commons' Committees not on oath, the necessity of the present, proposal was fully established.

Motion made, and Question proposed, That a Select Committee be appointed to consider the best means of providing for the examination of Witnesses upon Oath by the House of Commons, and its Committees."—(Mr. Torrens.)


said, he entirely concurred in the object of the hon. Member for Finsbury, but he expressed a hope that it would never be attempted to confound legislative with judicial functions. He could not conceive anybody more utterly unfit to conduct judicial investigations on facts than that House. He should not have risen on the present occasion if he had not desired to call the attention of the Government—and particularly of the Attorney General for Ireland—to a point which had arisen in the course of the transaction, which to-day they had been most happily delivered from, he trusted for ever. The Attorney General for Ireland, in calling on the House to enter into an investigation respecting that matter, stated that what was the only course he could pursue at the time, because he could not institute a prosecution for the use of seditious language in Ireland with and hope that the case would be tried before July, or, in all probability, before November. Such an announcement coming from the mouth of the Attorney General for Ireland was one of which the House of Commons should take notice. He should ask the House what it was called upon to do. They were called upon practically to try a man at the Bar of that House because it was a shorter, more convenient, and summary method than could be adopted in the ordinary courts of the country. Was not that, coming from so high an authority, a satire well founded upon the criminal jurisdiction of this country? They ought not to be called upon to try such questions as these, simply because the proceedings in our criminal courts were so dilatory as to amount almost to a denial of justice. He did not object to the proposal to give to the House the power of administering oaths, because there might arise in future questions for which no provision was made in the ordinary courts of law, and as salus reipublicæ was the suprema lex, it was most desirable when such cases arose that the House of Commons should have the power of administering oaths; but he trusted that the House would never be called on to administer an oath judicially in a case capable of being tried in the ordinary courts of this country. Measures ought to be taken to prevent the necessity of an Attorney General asking the House to try a question because the course of proceeding in the ordinary courts of justice was in such a discreditable condition that an ex officio information deemed necessary for the preservation of public order could not be tried till July or November, though the offence was committed in May.


said, he would like to know how many Bills were passed which were not Bills of Pains and Penalties. Last year the House abolished their privilege of trying election petitions, with regard to which they had the power of examining witnesses on oath. Now they were proposing to travel into unnecessary danger. They were proposing to take to themselves power which, in a period of general excitement, would constitute the House a court of criminal jurisdiction. There was this other defect in the present state of matters, that there was no other official exercising magisterial functions but the mayor, who could not be displaced by the law for misconduct. He thought it was a very great anomaly that a mayor should be exempt from the law in the event of his abusing his judicial functions. In the City of London there was a distinct and a most valuable security, which was that no man could be elected Lord Mayor until he had served as an Alderman, and his brother Aldermen, therefore, had some knowledge of his qualifications before they elected him; but this was not necessarily the case in the election of other mayors. He would earnestly request the House to limit itself to acquiring for Committees on special subjects the power of swearing witnesses.


said, it was not his intention to enter upon the general question, which had been before the House at an earlier period that day. He must remark, however, that he did not believe any proceeding known to the criminal law would have been adequate to that particular case, and the proposal of the Government was, in his opinion, the only one which could meet the difficulty. The hon. and learned Member for Oxford (Mr. Harcourt) was entitled to the thanks of the House for bringing under its notice a matter of great moment connected with ex officio information in the Court of Queen's Bench in Ireland. He was not acquainted with the practice in England, but in Ireland informal ions were subject to great delay by reason of antiquated rules that ought to be obsolete. The matter must be brought under the notice of the House with a view to its being remedied, and he certainly should consider it with the greatest care.


, who had given notice of his intention to ask leave to introduce a Bill to enable the House of Commons to examine witnesses upon oath, said, that until the hon. Member for Finsbury had risen he was unaware that he had meant to alter the terms of his Motion, and to move for a Select Committee without having given notice. However, the Government had now agreed to that Motion, as modified by the Prime Minister, and he should not have risen but for the remark of the hon. Member for Finsbury that such a Bill had no chance of passing in the hands of a private Member. That statement had caused him some surprise, and the hon. Member must have changed his opinion on the subject very recently, as but a very short time back—certainly within a few hours—he (Sir John Esmonde) might have had the advantage of having the hon. Member's name on the back of his Bill.


said, they were indebted to the hon. Member for Finsbury (Mr. Torrens), and the hon. Member who had just spoken for having taken steps to establish, in a formal manner, the conviction of which they were all conscious when they came to deal with the case lately before them. The Government were conscious of it when they proposed a particular mode of proceeding, and still more so were others who thought the defect in their judicial powers, arising from their supposed inability to administer an oath, constituted a con elusive reason against the initiation in that House of a Bill of Pains and Penalties. Therefore it behaved them well to consider whether this was not a case that called for some remedial measure, and what kind of remedial measure they ought to adopt. He did not feel any doubt that something ought 1o be done. The precedents of Bills of Pains and Penalties and Disabilities introduced into this House were by no means few nor insignificant; and everyone must admit, without, argument, that in the prosecution of such Bills it was eminently desirable, if not absolutely necessary—which would, perhaps, be putting it too high—that they should have the power of examining witnesses upon oath, and that they should not depend exclusively upon the Resolution they passed annually in defence of their own authority, that— If it should appear that any person has given false evidence in any case before this House or a Committee thereof, the House will proceed with the utmost rigour against such offender. No doubt that was a provision fortifying the character of the evidence given before the House and its Committees, but they must feel, and it was generally admitted, that something more was desirable. Three modes of procedure suggested themselves—a Resolution, a Committee of Inquiry, and a Bill; and it appeared to him that a Committee was best adapted to the case, and most conformable to precedent. If it were desirable that witnesses should be examined on oath, the first question was, whether the House had authority so to examine them by its own proper action without resorting to any higher assistance. He was very far from making that assertion, but still, if they were to proceed upon the direct negative of that proposition, it was desirable the negative should not be a mere matter of opinion, but that it should be established by the inquiry and by the judgment of a Committee. If a Committee determined that the House was or was not in a condition to administer an oath by its own authority, that was a step towards the solution of the question. Other questions most important to be examined, and which might be more conveniently examined by a Committee than by discussion in the House, were these—whether the power of examination on oath was to be taken universally, and, whether, if taken universally; it was to be taken with the intention of using it universally, or only with the intention of using it in certain cases; and. further, whether an attempt should be made, as was made in the Resolution in the form in which it was put upon the Paper, to define, by general words, the class of cases in which it was intended to use the power; or whether, rather it should be a power put into the hands of the House to use from time to time, and to determine by vote or by Resolution of its own to what particular case, or class, or class of cases this power should be applied. All these were very fit matters to be examined into by a Committee. If they were to refer the matter to a Select Committee it would be desirable to refer it without prejudice, and not to use words which would go so far as to assert, even Though their judgments might lean in that direction, that it was desirable they should examine witnesses upon oath. He would propose, instead of the Resolution, of the hon. Member for Finsbury, to substitute the following:— That a Select Committee be appointed to inquire into the expediency of adopting any further measure for the examination of Witnesses upon Oath by this House or by its Committees. He said "any further measures" because by various statutes measures had been adopted and powers granted for the examination of witnesses upon oath, and it would be to the extension of that system such words would be understood to refer.


said, he should be glad to withdraw his own Resolution, and adopt the words suggested by the right hon. Gentleman.


approved the amended Resolution, and said this was a very grave question to bring on at one o'clock in the morning. It was better that the Committee should inquire into the whole question, because it would then be open to them to consider—what the House had no opportunity of considering now—what had been the objections raised hitherto to the House itself administering' an oath. It would be a grave matter if it should turn out on inquiry that the House had not the power by its own inherent authority to administer an oath, and they would have to obtain that power by the consent of the other branch of the Legislature.

Motion, by leave, withdrawn.

Select Committee appointed, "to inquire into the expediency of adopting any further measures for the examination of Witnesses upon Oath by this House, and by its Committees."—(Mr. Torrens.)

And, on June 8, Committee nominated as follows:—Mr. DISRAELI, the LORD ADVOCATE, Mr. HENLEY, Mr. ATTORNEY GENERAL for IRELAND, Mr. WALPOLE, Mr. BOURVERIE, Mr. GATHGORNE HARDY, Mr. Serjeant KINGLAKE, Colonel WILSON-PATTEN, Mr. BONHAM-CARTER, Mr. HOWES, Sir JOHN ESMONDE, and Mr. TORRENS:—Power to send for persons, papers, and records; Five to be the quorum.