§ MR. WHALLEY, who had the following Motion on the Paper, but owing to the Forms of the House was unable to move it:—
That this House is of opinion that the power of inflicting in a summary way fine and imprisonment upon persons adjudged guilty of Contempt of Court which is now exercised by 1743 Her Majesty's Judges of Courts of Record should be used with extreme caution, and only in cases of urgent necessity; that, reserving the power of a Judge to punish in a summary way whenever necessary, it is advisable to provide by legislative enactment that a person aggrieved shall have some right of appeal, and that when practicable, punishment for Contempt of Court shall be awarded only after trial in due form and course of law,said, he could not help expressing his regret that as the hon. Gentleman the Member for Londonderry (Mr. Charles Lewis), who had a Motion on the Paper on the subject of Contempt of Court, was not in his place on that occasion, that hon. Gentleman had allowed his Motion to drop. Immediately he (Mr. Whalley) found himself in possession of the question, his first desire was to find proper materials upon which to bring it forward. He therefore applied to the hon. Member to furnish him with the cases which he had in his mind, to show the necessity for the interference of Parliament. He regretted to say that that hon. Member declined to furnish him with the information; and therefore he could only deal with such information as he had in reference to the misconduct of the Judges in administering this law of Contempt of Court in the Tichborne Case. And here he might remark that it was the Tichborne Case which had given rise to the public anxiety in respect to the whole question, and which might have led to the other departures from precedent. He had looked into many authorities, including Blackstone, and he could not ascertain whether Contempt of Court was insolence or a personal assault upon the Judge, or whether it was something done out of the view of the Court, such as interfering with witnesses. He contended, however, that nothing that had been done by him, or Mr. Onslow, or Mr. Skip worth justified the course which had been adopted by the Court in fining them, and sending them to prison, on the ground that they had been guilty of Contempt of Court. The Judges, however, had laid down a rule on this subject which now permeated the whole of the Courts of Law, and had even descended to the County Courts. One Judge, for instance, threatened to commit a lamplighter for not properly performing his humble duty, and in another case, the Judge increased the punishment of a prisoner in consequence of what the learned Judge supposed, erroneously, 1744 had been uttered by the prisoner to another man in the dark. He contended that in respect to Contempt of Court the Judge was restricted to what took place in common with the administration of justice. The Common Law offence of Contempt of Court was restricted to such offences as it was necessary to punish then and there, in order to enable the Judges to administer the duties of their office. What took place in regard to the Tichborne Case did not arise from any misapprehension of his powers on the part of the Lord Chief Justice, for he declared that he used this pretence of Contempt of Court as a means of putting down public discussion as to the trial in connection with the Tichborne Case. The object of putting down the public discussion thus to prevent the man from having that fair trial which the common sense and the laws of his country provided that he should have. He charged the Lord Chief Justice with having, in enforcing his views in respect to Contempt of Court, a determination to prevent discussion respecting the Tichborne Case; and then to prevent money being raised to bring up witnesses on behalf of the Claimant—for it was impossible that the man could possibly have a fair trial unless money was raised for that purpose—and thus meet the large number of witnesses brought up by the Crown against the defendant, and which witnesses were brought forward at the expense of the country. He therefore charged the Chief Justice of the Court of Queen's Bench with having the deliberate object, in enforcing this principle of Contempt of Court, to prevent the Claimant from meeting the case brought against him, and supported in the way which he had stated. At the last election for Peterborough he (Mr. Whalley) was returned by a larger number of voters than at his previous elections—a fact that justified him in saying that the course which he had taken in support of the Claimant had been approved of by his constituents: and this brought him to the circumstances connected with the case of his imprisonment upon the charge of Contempt, and these circumstances were fully brought under the consideration of the right hon. Gentleman opposite at the head of the Government. The right hon. Gentleman, however, took the matter out of his hands to deal with it 1745 as a breach of Privilege, and he (Mr. Whalley) was left under the happy delusion that the right hon. Gentleman's object was to give a wider scope to the inquiry into this one of the instances of the trial, but to his amazement the right hon. Gentleman declined to enter into the question—he declined to give any answer to the appeal of 1,611 of his (Mr. Whalley's) constituents praying for an inquiry into the conduct of this man—of this Lord Chief Justice.Notice taken that 40 Members were not present. House counted, and 40 Members being found present,
§ MR. WHALLEYresumed by saying, that not only had 1,611 of his constituents made a demand for inquiry, but that 300,000 honest men of England had petitioned to the same effect. He was aware, however, that the Government totally ignored the 300,000 petitioners on this subject, and that they almost disregarded the amenities which should exist between the Government and private Members. This was, he believed, the first time in the history of England, for it had not occurred even in the worst of times—in the time of Jeffreys—when a Judge, assailed in this way by the Petition of upwards of 300,000 persons, and distinctly charged with misconduct, had consented to allow himself to remain in the discharge of his duties while the petitioners remained either unsatisfied or properly rebuked. The right hon. Gentleman the Home Secretary told them that he had adopted in the case of the Tichborne trial the same course which he adopted in the case of an ordinary trial. But if that were so, why did the right hon. Gentleman tell them whether or not he had forwarded to the Lord Chief Justice the Petitions, affidavits, and complaints with respect to that Judge's conduct, which had crowded into the Home Office from every part of England? He did not tell them that he had refused to allow the Members of the House even to see them. He had, however, made an exception in his (Mr. Whalley's) favour, assuming that he was the only Member of the House who felt an interest in the case, ignoring the honest and serious agitation which was taking place out-of-doors in reference to this question. Further than this, he distinctly charged the Prime Minister himself with having gone out of his way 1746 in putting upon the records of the Committee a Resolution approving of the conduct of the Lord Chief Justice. In bringing forward that matter he disclaimed anything like a personal motive, and his wish was to entirely separate his ease from the complaints of the people though he had been twice fined and imprisoned for Contempt of Court. He contended, however, that the Lord Chief Justice had acted contrary to the precedents of his Court by inflicting that fine and imprisonment upon him. There was, however, one question upon which, with the permission of the House, he would say a few words, and that was as to what could be the motive of the Chief Justice for this grievous disregard of the precedents of Ms Court, this outrage upon the feelings of the sense of justice of the people of England by stopping public discussion under the plea of Contempt of Court. The onus of explaining that' fell upon his hon. and learned Friend the Attorney General, or whoever else might rise to reply to his Motion. He (Mr. Whalley) would, however, venture to point to this circumstance, that in their Petitions the people—how they came by that knowledge he could not say—had distinctly stated that the Tichborne trial was the result of a Jesuit conspiracy. They stated that Stonyhurst College, which was the centre of the Jesuits in this country, had subscribed to forward the views of those members of the Tichborne family who were connected with that Order. There was no other solution of the mystery in which the case was involved, including the extraordinary conduct of the Press, which ignored, suppressed, or perverted, habitually and systematically, all that was said or written with respect to the case. He begged to state on behalf of the people who had signed these Petitions, and in repudiation of the futile and undignified imputation of the Lord Chief Justice, that they were "fools and fanatics, uneducated and deluded," that they had good sound constitutional reasons for the course they had taken, and that it was nothing less than a deliberate organized Jesuit conspiracy. The Jesuits were known in history and in every country of the world as men who ought to be regarded as outside the law. ["Question!"] He was endeavouring to explain in some rational manner, why this case should have been 1747 involved in the mystery which the country contemplated with so much amazement. The Prime Minister had himself admitted that such was the law, and said he would enforce it whenever he found that these men offended. But why did he not enforce it, since the law stated that they offended by living in the country at all? These men acted in defiance of the law; they ignored it, and acted with motives and for objects that were inscrutable to him. He might mention in corroboration of this that when the unfortunate man now in prison returned to this country he, in conjunction with the present Governor General of India, Lord Northbrook, and several other Hampshire gentlemen, subscribed to his support, as they all knew him to be the man he said he was.
§ MR. BOORDrose to Order, and asked if the hon. Gentleman's remarks were relevant to the question before the House?
§ MR. SPEAKERsaid, the Question was that the House go into Committee of Supply. He could not say the hon. Gentleman was overstepping the bounds allowed in such cases; but he would suggest that he should confine himself to the particular point he wished to bring to the notice of the House.
§ MR. WHALLEYsaid, he would endeavour to do so. He was merely pointing to the fact of this general subornation as a proof of as general a belief in the identity of this man, which was attempted to be destroyed by some extraordinary occult influence working both in Parliament and in the Press, and which had even reached the Courts of Justice. Whatever this influence might have been, it, at all events, remained for the Government and those who defended him to assume the charge which he (Mr. Whalley) distinctly made, and which he was prepared to substantiate by every means, that the Lord Chief Justice did not even pretend to administer the law, but openly and avowedly, by his acts and by his words——
§ GENERAL SHUTEI rise, Sir, to Order. Is any Member of this House at liberty to speak of the Lord Chief Justice of England in such language without bringing forward any specific charge?
§ MR. SPEAKERreplied, that the hon. Gentleman was at liberty to make 1748 charges against the Lord Chief Justice, but he was morally bound to substantiate them.
§ MR. WHALLEYsaid, that nothing could give him greater pleasure than that the Government should afford him the opportunity of substantiating the charges which he made against the Chief Justice of administering the law in his Court in a way which was entirely without precedent in punishing him and other gentlemen for an alleged Contempt of Court, and avowedly for the purpose of preventing public discussion in respect to the Tichborne trial. The result of that had been to deprive the unfortunate man of the only means he had of bringing up witnesses to prove his case. It now rested with the Government to account for this Judge's conduct. For his own part, he could discover no motive more reconcilable with all the circumstances of the case than that alleged by the petitioners—that he had been influenced by the Society of Jesus, an Order of men whom the law said were not fit to live in this country. He thanked the House for the patience and courtesy with which hon. Members had listened to what he had to say in favour of his Motion to restrict the power of their Courts in inflicting punishment for Contempt of Court, except in such cases as interfered with the proper discharge of their duties. If the Government would not take any trouble in the matter, he himself would introduce a short Bill to define the limits within which that power should be exercised.
§ DR. KENEALYsaid, that if anything were wanted to satisfy him of the absolute necessity of bringing in a Bill for triennial Parliaments, it was the bearing of the House on that great question. The people of England would learn in the morning through the newspapers that when his hon. Friend the Member for Peterborough (Mr. Whalley) brought forward a Motion of the greatest and most vital consequence to every man in England, there were so few Members in the House, that an hon. Member thought it right to call the attention of the Speaker to the small number present. It was, as it seemed to him, a most lamentable sign of the decline of public spirit, that atrocities of the nature which they had seen practised under the doctrine of Contempt of Court could be suffered so long to pass by with impunity. 1749 He had hoped to follow the hon. and learned Attorney General, and not to precede him. He was anxious to learn from a learned lawyer like him any justification in point of law or precedent for those unconstitutional and illegal proceedings. He would express his own views on the matter—and he challenged the hon. and learned Gentleman, if he could, to demolish the edifice which he hoped to raise—and would show that there was no pretext or pretence in law for the proceedings that were carried on by the Court of Queen's Bench during that iniquitous trial. At the same time, he must say that he felt some sympathy for the hon. and learned Gentleman and all the right hon. Persons by whom he was surrounded. When Voltaire received some verses from the King of Prussia which His Majesty asked him to polish, he complained that the monarch had sent him such a quantity of dirty linen to wash, and he (Dr. Kenealy) sincerely sympathized with the hon. and learned Gentlemen opposite, who for so long a period of this Session had had so much dirty linen of the late Government to wash. He was not saying that the hon. Gentleman opposite had had much of their own, because he thought the present Ministry, with the exception of their unaccountable aberration in the Tichborne Case, had conducted the Government with as much dignity as could be expected, and it was rather hard on them that they should have to answer for and defend the gross dereliction of duty of the late Government. He had hoped to see on the Opposition benches some of the legal Representatives of that Government, because the acts complained of were committed during the time that Government was in power. He had therefore hoped that some of those legal Representatives would have been on those benches to explain or justify why it was that they did not interfere in stopping proceedings which certainly must have astonished every man in England who knew anything about the Constitution of England. Those Gentlemen, however, had thought it wise to be absent. He supposed if they had been able to justify those deeds—those unjustifiable deeds—they would have been present to do it. They were not. He would hear with some expectation what justification could be given of them by 1750 the hon. and learned Gentleman opposite; but he (Dr. Kenealy) certainly would have preferred that he had followed the hon. and learned Attorney General so that he (Dr. Kenealy) might have had some opportunity of commenting or criticizing or probably of being convinced by the arguments of the hon. and learned Gentleman. It was not at all to be wondered at that there should have been a great amount of excitement in the country during the Tichborne prosecution. The committal of the Claimant by the late Chief Justice of Common Pleas was an almost unprecedented act. The Claimant himself, in the course of his cross-examination had told Chief Justice Bovill that so long as he sat upon that Bench there was no necessity for a hostile counsel to cross-examine him, and that remark caused a very powerful effect throughout the country. The country was watching the Case with a thousand eyes; the country saw the justification of the remark; the country was disgusted beyond measure with the summary mode in which the trial came to a conclusion. They sympathized very much with the man when he was sent to Newgate, a bail being imposed upon him which it was almost impossible for him to meet—namely, £5,000 himself and surety to the same amount. They saw the man be in Newgate 50 days before he could procure that enormous bail. They also saw that Lord Rivers and other gentlemen of standing, when they went bail for him, were cross-examined as if they were thieves. Therefore it was that there was an amount of public feeling exhibited throughout the nation in favour of the man and against his opponents—his unjust and unrighteous opponents, as they believed them to be. Then the Defendant, as was very well known, had no money. The long time which the Crown thought fit to take between his committal and prosecution—a period of nearly 15 or 16 months—had exhausted his means. He had the misfortune, too, to fall amongst a variety of lawyers, and he was like the unfortunate man in Jerusalem who fell among thieves. He was completely cleared out, and just before the second trial he was almost penniless. It was absolutely necessary for him to resort to public meetings to get funds for his defence. He arraigned the conduct of the Court of Queen's Bench, for having deliberately 1751 attempted to put down those meetings, called together for the legitimate purpose of raising money to defend a penniless man. The first attack which was made by the Court was upon Messrs. Onslow and Whalley for attending a meeting at St. James's Hall, London. The only offence, as far as he could see, that those gentlemen were guilty of in attending that meeting was, that they said they believed that certain persons in the Trial in the Court of Common Pleas had committed perjury; and that was made the pretext for carrying those two Gentlemen before the Court of Queen's Bench, and bringing to bear upon them the exercise of a power which he undertook to say had never been exercised before. When the Lord Chief Justice was called upon to justify to some extent his extraordinary conduct, he intimated that the right of committing for Contempt was a rather ancient one. He (Dr. Kenealy) deliberately asserted that no instance could be found in the history of the law of Contempt up to the time of Lord Hardwicke—very recently—where such acts entailed such punishment. In the time of Henry II. there was a case where words of contumely were used in the case of a Judge sitting under a Royal Commission, but the man was tried in the ordinary process of law. The hon. and learned Gentleman opposite knew very well that when he went back to Henry II. he went back very far indeed. But he could go to one of the clauses of the Great Charter, which showed how violently, as it were, our ancestors guarded against the attempt to set up an arbitrary power in this country. The clause to which he alluded was the 46th, and it ran in the following words:—
No freeman shall be taken, or imprisoned, or disseised, or outlawed, or banished, or in any way destroyed, nor will we pass upon him, or commit him to prison, unless by the legal judgment of his peers, or by the law of the land.That clause had been, and was at that moment, the law of the land, yet it was violated, and set at naught, by the Judges of the Queen's Bench, in their arbitrary proceedings for Contempt. There could be only two modes of ascertaining the law of the land. It was either written or unwritten. He asserted, but he was open to conviction, that there was neither written nor unwritten law, down to the time of Lord 1752 Hardwicke, which authorized such proceedings as those of which they complained in the Tichborne Case. It was contrary to the spirit of the law that a man should be accuser and Judge; but the monstrous doctrine was also laid down that no answer could be given by the persons directed by the Court to be prosecuted for Contempt, and that it was simply a question of punishment. From the time of Henry I down to the establishment of the Star Chamber, there was, he asserted, not one single instance known of summary punishment for Contempt. Hargrave, in his Juridical Arguments, vol. ii., p. 183, said—I am myself far from being convinced that commitments for contempt by a House of Parliament, or by the highest Court of Judicature in Westminster Hall, either ought to be, or is thus wholly privileged from all examination and appeal.Hallam cites this with approval, iii., 281. The hon. and learned Attorney General knew how great a lawyer Hargrave was; he was entitled to as much weight as any Judge, and to more weight than many of them; yet such was his deliberate opinion upon Contempt. Again that great jurist said—I am far from subscribing to all the latitude of the doctrine of attachment for contempt of the King's Courts of "Westminster, especially the King's Bench, as it is sometimes stated and has been sometimes practised.What was the opinion of Hallam on what Chief Justice Wilmot said—The principle upon which attachments issue for libels on Courts is of a more enlarged and important nature; it is to keep a blaze of glory around them; and to deter people from attempting to render them contemptible in the eyes of the people."—[Opinions and Judgments, p. 270.]At one blow that was demolished by Hallam, who in his comment on it said—Yet the King, who seems as much entitled to this blaze of glory as his Judges, is driven to the verdict of a jury before the most libellous insult on him can be punished."—[Constitutional History, iii., 283.]Hon. Members laughed at the "blaze of glory" to which Chief Justice Wilmot alluded. In his opinion the present blaze of glory in which the Judges of the Queen's Bench shone, was a blaze of fire that would consume them, as Semele was consumed by the glory of her lover. Lord Mansfield, who was quite as arbitrary and despotic a Judge as any one now existent, in the last century, when 1753 papers had been distributed in an Assize town among jurors summoned to try a great cause, did not venture to resort to the Contempt of Court doctrine. He knew better. He only adjourned the trial; leaving it to the party aggrieved to proceed by criminal information. And Lord Denman had declared from the Bench, that the summary power was limited to cases of direct insult to the Court while it was sitting, or of obstruction to its process. That was law, and it was common sense also. Therefore, the whole of these proceedings, carried on under the auspices of the Court of Queen's Bench, were absolutely without precedent. If he wrote the most fearful libel against the Sovereign, that Sovereign had no power to summarily punish him. The Sovereign could only send him to be tried by a jury: and could it be contended that a man who spoke disrespectfully of the mere Representative of that Sovereign could be punished without trial by jury? The thing was absurd. It would not bear a moment's examination. He would be glad if the hon. and learned Gentleman could clear up that rather difficult matter. What were the facts? Mr. Onslow and Mr. Whalley expressed their opinion that the evidence given against the Claimant in the Court of Common Pleas was false, and they were declared guilty of Contempt. But when he (Dr. Kenealy) brought Mr. Routledge before the Court for speaking of the Claimant as "a swindler, a scoundrel, and a perjurer," the Court would hardly listen to him. Mr. Onslow and Mr. Whalley disclaimed any intention of offending the dignity of the Court. They never intended to bring the Court into contempt. They asserted as Gentlemen—and he believed that they were entitled to credit—that they merely sought to awaken sympathy for the man and to obtain funds for his trial. They were treated almost as felons, and reprimanded in the strongest way. He would not soon forget the acrimony with which each of these Gentlemen had been treated by the Bench. There was no calmness, no judicial dignity, none of the fine placid solemnity which they were accustomed to associate with the character of our Judges; but all was violence, rage, anger, and evidently a powerful and deeply-rooted determination to put down public meetings, and assertions at such meetings about the 1754 Claimant. The scene was one utterly unprecedented and disgraceful to an English Court. He was present at the time, and the conduct of the Bench carried him in spirit back to the horrible days of Scroggs and Jeffreys. Mr. Skip-worth was also there, and he probably was moved by the same indignation as himself. He went down to Brighton, and addressed a public meeting, to which he described what had taken place that day in the Court, and said he had seen two Members of Parliament treated as criminals for advocating truth and justice throughout the country, and that he hurled the intimidation of the Judges back with the contempt which it deserved. There was no attempt in the speech to prejudice the public mind, or to interfere with any person who might afterwards be considered an important witness; but simply the exercise of the right of every man to make a criticism, uncalled-for and unmerited if they pleased, but a criticism on the conduct of one of our Judges in his judicial capacity. He (Dr. Kenealy) had yet to learn that an Englishman was prohibited by any law from criticizing the conduct of any public officer of State. Of course, he exercised that right at his own risk; if he passed the bounds of due criticism, the law would step in and punish him. But, for simple criticism like that at Brighton, to say the critic could be summarily dragged before a Court of Law and fined and imprisoned, appeared to him about one of the most arbitrary stretches of unjust power ever witnessed in any country. Bad as the Tichborne precedent had been, and fraught with dangers to public morals, including the palliation of adultery, embezzlement, and falsehood given from the Bench, he did not believe that it was to be equalled in badness by the doctrine now sought to be established—that for language such as that at Brighton a man could be dragged away, convicted without trial by jury, and fined in the large sum of £500, and subjected to three months' imprisonment, as Mr. Skipworth was. If hon. Members did not believe that these things were entering deeply into the English mind and heart, they were sadly mistaken. He did not believe anything in the world had more deeply entered into the English soul than the sending of those Gentlemen to prison without the intervention 1755 of a jury. ["Oh!"] Gentlemen would find that that was so when they faced their constituents. [Ironical cheers.] They would hear cheers of a different kind when their constituents questioned them on this matter. It was not for him to anticipate; but he entertained a very lively anticipation that when they cried "Oh!" before their constituents, they would do so in very different and in very melancholy tones. The Claimant was brought up for saying the Lord Chief Justice had spoken of him at his club as a rank impostor, and had said to some ladies that it was a shame to mention his name in decent society. The Lord Chief Justice handed the newspaper containing these statements to the Attorney General, and asked him to bring the matter before the Court. "Was it not repugnant to every principle of justice that the Judge whose conduct was arraigned in this matter should himself call the attention of the Law Officers of the Crown—that he should act judicially in his own case—a thing which the humblest magistrate in England would not do if he were prosecuting a person for stealing a couple of eggs from him? That the Lord Chief Justice should do this seemed to him (Dr. Kenealy)—he hardly liked to call it an outrage on public decency, but in his judgment it was a course of such a nature as required no language of his to characterize as it deserved. Mr. Skipworth and the Claimant were called before the Court. Why did not the Lord Chief Justice then deny the imputations made against him? What were these accusations? He would read them from the report. First of all came the speech of Mr. Skipworth, which was as follows:—Ladies and Gentlemen,—It is encouraging to find, your reception after the degrading spectacle, I may say, I have witnessed at the Queen's Bench to-day in London. Nothing less than this: that two honourable Members of Parliament have been brought up, I may say, as criminals, for advocating truth and justice throughout the country. ('Hear, hear,' and applause.) Yes, gentleman, I say a sad spectacle it is for England that we have come to this—no less than a great infringement upon our rights and liberties—(' Hear, hear')—and if they had a just cause upon the other side, you may depend upon it it would never have been done. ('Hear, hear,' and a cry of 'Never.') And what do they mean when they rob a man of everything he possesses, and he has to go about the country for a living? They would even rob him of every friend he possesses. (Applause.) The Lord Chief Justice of England 1756 particularly stated in his judgment how mild and moderate he was to these gentlemen, inasmuch as they had apologized; but it was was only an example, and that if anyone else should similarly offend, or be brought up under similar circumstances, they would be visited with the full rigour of the law—not only a fine would be inflicted, but imprisonment. (Cries of 'Shame,' and hisses.) Gentlemen, I hurl his intimidation back with the contempt that he has treated these Members of Parliament with. (Loud applause.) I care not for his intimidation. I will stand here when my duty calls me in defiance of his—ay, I will call them—vulgar threats. (Renewed applause.) I am not going to be intimidated when I consider that a duty to my country calls me forth.The remainder of the speech was to a similar effect. Here, the House would observe, there was not one syllable spoken as to the pending trial. Every word was directed against the arbitrary, tyrannical, and despotic conduct of the presiding Judge. Talk of Algiers and its laws, or rather its defiance of laws, after that We had now Algerine law in this country. He now turned to the Claimant's speech which he found thus reported—Four years ago the Lord Chief Justice of England publicly denounced me as a rank impostor at his club. I know of others (occasions), but cannot prove them, so will not. But I can prove that he subsequently, within these last two months, at a party where a lady friend of mine was, distinctly turned round to those ladies, and said it was a disgrace to mention my name in decent society. ('Oh, oh!') I think I have a right to call on him to answer for Contempt of Court. I do not suppose they would grant the rule, but rest assured I will apply for it. And I maintain, ladies and gentlemen, that he had no right to sit on that Bench (to-day). At St. James's Hall my friend, Mr. Onslow, stated that the Lord Chief Justice was not a fit Justice to sit on my forthcoming trial. He gave, as his reasons, those I have mentioned, and that he had also, during the late trial, while sitting by the side of Judge Bovill, written on a piece of paper—' Had I been Judge, and you leading counsel, we would have had this fellow in Newgate long ago.' He was a party concerned, and if he had had the slightest delicacy for his honour he would never have sat on the Bench (to-day). So much have I heard, that I intend to petition Parliament against his sitting on my forthcoming trial. No doubt, I shall be able to prevent him. If I do not, I will go into that Court without counsel, attorney, or witnesses, and let him crush me as he thinks proper. ('No, no!') If the Lord Chief Justice has got to sit and adjudicate on my case I will offer no evidence, but throw myself on the country. (Applause.)Now the Lord Chief Justice, thus publicly arraigned, himself handed to the Attorney General—or his representative—the newspapers which contained the report, and in the presence of his junior 1757 Judges demanded punishment for these reflections cast upon himself. This was against all law, for a Judge to be Judge in his own cause. But he shrank from a public denial of their truth. He never has denied them to be true. He might well have come into court on the day of committal, and said—"I appear here because of certain charges brought against me. I give the most positive denial to their truth, and now I will retire from the Bench and allow my brother Judges to deal with this matter." That was not done, which furnished to his (Dr. Kenealy's) mind an evidence of want of bonâ fides on the part of the Lord Chief Justice. The Claimant was not punished at all, but was allowed to go free, because the Court admitted that if he was locked up, he could not get money for his defence. Those were two of the three cases—the third exceeded all the rest. When the House heard what Mr. Whalley was sent to prison for, it would be indeed surprised. He was sent to prison because of his belief in the witness Jean Luie. Mr. Whalley had, at his own expense, undertaken a troublesome voyage to America to sift Luie's story, and see if he was a credible witness; and he came to the conclusion, which he still entertained, that the man's story, with regard to the Osprey, was substantially true. He came back, and on his report the defence called Luie. Soon afterwards that man was sworn to by a detective as having stated that Mr. Whalley had called on him at Brussels, and induced him to come forward. No one who knew Mr. Whalley could believe he was capable of a dishonourable act. He might have eccentric notions about the Jesuits and other matters; but he (Dr. Kenealy) did not believe that any hon. Gentleman who had been associated with him in that House, or out of it, for the last quarter of a century would believe that Mr. Whalley could be guilty of a wilful fraud. When the statement of the detective was published, Mr. Whalley sent a letter to the papers, in which he said nothing that had occurred had affected his belief in Luie's evidence about the Osprey. That letter was as follows—To the Editor of The Daily Mews.Sir,—I ask the favour of your insertion of the copy of my letter to the defendant's solicitor, written on my way home from America. It was only on Saturday last that I became informed 1758 that a copy of this letter has been in the hands of the Solicitor of the Treasury, and the ground on which I now ask for its publication is, that the Lord Chief Justice stated, when I was in the witness-box, that it would be material to show that the prosecution knew the result of my inquiries in America. I was unable, in reply to his Lordship's question, then to say more than that I had from the first pressed upon the Solicitor of the Treasury to accept information of every fact and circumstance that from time to time might come to my knowledge, whether for or against the defendant, and that he had persistently refused to do so. As the statements of Detective Clarke of what Jean Luie has told him (though denied, as it seems, by Luie himself) may materially prejudice the Trial, I consider that I am called upon to state that nothing that has occurred in relation to this man affects my belief that his evidence as to the Osprey is substantially true.—I am, &c,(Signed) "G. H. WHALLEY.London, 20 January, 1874.Was it creditable—was it even creditable that for the last paragraph in that letter Mr. Whalley was fined £250 and was sent to prison? It was perfectly monstrous. He (Dr. Kenealy) could hardly have conceived that, notwithstanding the unprecedented lengths to which the Court went, it would go the length of saying that Mr. Whalley must go to prison for saying he believed, in Luie's story about the Osprey. The fact had only to be mentioned and considered candidly by any honourable and rational mind, to compel that mind to come to the conclusion that it was utterly unjustifiable. He would not trouble the Court—he meant the House—with anything else except what related to the defendant himself. He used to go round and shoot in the name of Sir Roger Tiohborne, which was considered such a Contempt of Court that the Court would not allow him to go and shoot in his own name. In what name was he to go and shoot? Was he to call himself Arthur Orton? That could hardly be said; he (Dr. Kenealy) did not know what might be said in reply; but it was outrageous that because he represented himself at the shooting matches as Sir Roger Tichborne, which, by every principle of law, until convicted, he was entitled to do—because he did that he was threatened with being sent to Newgate. Those were very high-handed proceedings, and though they might not meet with that reception in that House which he wished they would, they were producing great effect on the country, as was shown by the extraordinary number 1759 of Petitions that had been sent praying for an inquiry into the Claimant's case. To those Petitions the House had turned a deaf ear. He was not going to set himself up as a censor of the House. No doubt, the House was acting with what it thought due wisdom and deliberation. But he did hope, whatever conclusion the House might have come to previously, it would not hastily come to any resolution in this case which would go the length of confirming the doctrine, now for the first time laid down, that men might be summarily fined and imprisoned for such offences as he had called the attention of the House to. Hon. Gentlemen must all have read of two great trials which excited as much public feeling as that of Tichborne. The first was that of Warren Hastings. Multitudes of leading articles were written during that trial, and speakers went about, some asserting his complete innocence, and others denouncing him, in the language of Burke, as one of the greatest miscreants that ever existed. The High Court of Parliament must have been cognizant of all this, and yet it never ventured to exercise any power of committal for Contempt for those ebullitions of party feeling. It knew that no such power existed in law. In the same way, on Queen Caroline's trial, half England asserted that she was a martyr of innocence and purity; others, siding with the King, asserted the opposite; and yet, although the Ministers were not indisposed to adopt the most arbitrary proceedings to gratify the King and their own feelings, no instance was recorded of a punishment for Contempt during the whole of that trial. These were two extraordinary precedents in his favour. Apparently, in the mind of Parliament then, no power existed in the legal tribunals to punish for the expression of opinion one way or another; and yet everybody knew how virulent, and hostile, and how acrimonious those expressions of opinion were. These facts demonstrated that the lawyers of those days—men infinitely greater than those we had at present—did not believe there was any such authority resting even in Parliament to act on that doctrine of Contempt of Court. He had now cited law and narrated facts to show that there was an undue, unfair, and almost tyrannical exercise of power for the suppression of all expression of public opinion 1760 in the Tichborne Case. The interest of every man in this country was that men should not be muzzled, in the way the Court of Queen's Bench sought to muzzle the opinion of England in that trial; he declared that it was against all our precedents, predilections, and views that an Englishman should not be allowed to speak his thoughts as freely as the winds of heaven blow. He called these matters to the attention of the House, sincerely hoping that he had made some impression. His only object was to consult the public interest in this matter, and he threw himself on the dignity, the traditions, and the glorious history of that House. He hoped it would not be insensible, or blind, or deaf to a recollection of its grand and constitutional recollections, and that it would rise equal to the present occasion, and proclaim a law which would give delight to the whole of England—that no Judges were invested with the power with which the Judges in the Court of Queen's Bench had invested themselves, and that Parliament would interfere to check the growth of any such power as unconstitutional, tyrannical, and disgraceful in the very highest degree.
THE ATTORNEY GENERALasked for the indulgence of the House while he made a few comments upon the very small portion of the speeches of the hon. Members for Peterborough and Stoke which appeared to him to be appropriate subjects for discussion in the House. He said that he must, in the first place, observe that the hon. Member who had last spoken appeared to be under some misconception as to the real question before the House, for he had repeatedly expressed a hope that the House would express some opinion upon what he called those important questions which he had brought under their consideration. The sole question now before the House was, whether they should go into Committee of Supply, and, on such a Motion, no vote could be taken or decision arrived at on the matters to which the hon. Members had called attention. At the same time, he (the Attorney General) felt that it would not be becoming in him if he altogether passed over the observations which the hon. Members had addressed to the House. The hon. Member for Peterborough had given Notice of a Motion, 1761 which he was prevented by the Rules of the House from bringing on as a Motion, though it was quite open to him to discuss its subject-matter. The first part of his Motion was to the effect that the power of inflicting in a summary way fine and imprisonment upon persons for Contempt of Court, as now exercised by Her Majesty's Judges of Courts of Record, should be used with extreme caution, and only in cases of urgent necessity. He (the Attorney General) did not think that any Member of the House dissented from that proposition; but it was not the custom of the House to pass Resolutions simply expressive of that to which everybody assented. The second part of the Notice of Motion given by the hon. Member for Peterborough was as follows—
That, reserving the power of a Judge to punish in a summary way whenever necessary, it is advisable to provide by legislative enactment that a person aggrieved shall have some right of appeal, and that when practicable, punishment for Contempt of Court shall be awarded only after trial in due form and course of Law.To that part of the Notice of Motion no reasonable objection could be taken; it was a very proper subject for any hon. Member, who deemed legislation necessary, to bring under the consideration of the House. As regarded the power of Judges to punish for Contempt of Court, he thought it was a most useful power, and one which ought to be retained; it was vested in the Judges, not for their own protection, but in the interests of the public; it enabled the Judges to secure a fair and deliberate trial of the matters which, from time to time, came under their consideration. That opinion, he believed, was shared by a very large number of Members in that House. At the same time, the question whether that power ought to be limited would be a fair subject for discussion; and, holding the office he did, he thought it his duty to be present during this discussion, and to ascertain to what extent hon. Members might make out a case for imposing any such limit. The House, however, was aware how the subject-matter of the Notice of Motion had been departed from. The Notice of Motion recognized he existing power in the Judges, and asserted the propriety of limiting it by legislation; but, instead of pointing out any amendment, which they desired 1762 should be made in the law, the two hon. Members told the House that the existing law had been broken by the Judges of the land. But had any one single case been brought forward illustrating or suggesting any breach of the law by the Judges, or the necessity for any alteration of the law, except those which had been alluded to as having occurred in connection with the Tichborne trial? Now, as far as regarded the incidents of that trial, he appealed to the House whether the present occasion was a proper one for renewing the discussion on the incidents of the Tichborne trial? The hon. Member for Stoke availed himself of a recent opportunity to bring the subject of that trial under the consideration of the House, and he could at that time have asked for its opinion on this matter. Had not the hon. Member the fullest opportunity of then assigning every possible reason that could be urged by him against the manner in which that trial was conducted? He urged his reasons for a new trial, in the presence of one of the largest assemblies in the course of the present Session, and he found only two supporters. Again, as regarded the subject of committal for contempt, the hon. Member himself asserted that committal for contempt, in respect of such matters as those in respect of which the hon. Member for Peterborough was committed, was contrary and unknown to the law of England, written or unwritten. But he (the Attorney General) asserted the contrary. The hon. Member himself admitted that, from the time of Lord Hardwicke down to the present time, the exercise of the power of committal for contempt in respect of publication pending the progress of a trial had been distinctly recognized. He spoke of Lord Hardwicke's decision as recent, but it was given 100 years ago, and had been followed ever since: by Lord Erskine, and by the Court of Queen's Bench upon the occasion of the trial of Thistlewood and Ings; in the latter case, a printer, for having published matter affecting the trial while it was pending, was punished for Contempt of Court, exactly in the same way as those had been punished who had committed Contempt of Court in connection with the Tichborne trial. He did not consider that in any instance in which that power was exercised during the Tichborne trial there had been any 1763 failure of justice. No doubt, it might occasionally happen that a Judge might make a mistake; but he was sure that the House would not be prepared to deprive the Judges of a valuable power, because, on some very rare occasions, there might have been some possible error in its exercise. The Judges were not deprived of their power of measuring out punishment in criminal cases, because it was sometimes thought that they had been too severe or too lenient in their sentences. But he must guard himself from appearing to think or to suggest that there had been the slightest departure from the law of the land, as far as regarded the committals for Contempt of Court, by the Judges in the Tichborne trial. On the contrary, he was of opinion that that trial had been conducted by the learned Judges in a manner which entitled them to the gratitude of their country, and he was extremely sorry that the hon. Members, after the full opportunities they had had on a late occasion of expressing their disapprobation of the mode of conducting that trial, and after the strongly expressed opinion of the House upon that occasion, should have thought it worth their while on the present occasion to get up and insinuate, if they did not actually assert, that the proceedings of the Judges, and, in particular, of the Lord Chief Justice, had no other object than of preventing the man on his trial from having a fair trial. That insinuation, he believed, met with no response from any Member of the House. The hon. Member for Peterborough wound up his statement by referring to the punishment inflicted on himself for Contempt of Court in connection with the Tichborne Case, and the hon. Member for Stoke had referred to it as the most flagrant, in his opinion, of all the infractions of the law committed by the Judges. Now, the case of the hon. Member, in respect of this very committal, was brought before a Committee of the House on Privileges, and the only further observation he (the Attorney General) would make in regard to it would be, to read the conclusion at which that Committee arrived, and in which the House concurred.
§ MR. WHALLEYThe Committee declined to enter into the circumstances, as will appear from their Report.
THE ATTORNEY GENERALsaid, that what he was about to read would 1764 speak for itself, and he read the following passage from the Report:—
Your Committee, having had such orders and affidavits before them, proceeded to offer to Mr. George Hammond Whalley an opportunity of making such observations on the matter referred to them as he might desire to offer. Mr. George Hammond Whalley has put in a written statement, part of which appear to your Committee to be irrelevant to the specific object of the present inquiry, but your Committee considered that it would not be expedient to omit any portion of what he deems essential to be laid before the House. Under all the circumstances of the case, your Committee are of opinion that the matters referred to them do not demand the further attention of the House.
§ MR. WHALLEYsaid, the Committee declined to enter into any consideration of the circumstances which he brought before them—
§ MR. SPEAKERruled that the hon. Member was out of Order, having spoken to the Question, that the House go into Committee of Supply.
Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.