HC Deb 04 May 1877 vol 234 cc338-50

in rising to call attention to the case of Colonel he Faby, said, the House had been for the last hour-and-a-half engaged in commenting on the proceedings of the Irish magistracy. He would invite them for a short time to turn their minds to the magistracy in the Channel Islands. He wished to call attention to a case of singular severity and oppression that had recently occurred in Guernsey. His object in doing this was two-fold. He was desirous of securing some consideration or compensation for an unfortunate gentleman who had suffered great harshness at the hands of the authorities in that island. In the second place, he was anxious to use the incidents of the case for showing the necessity there was for a complete and radical reform in the administration of justice in these small dependencies. The Constitution existing in the Channel Isles was substantially the same as was in operation in the 12th century. The administrative and fiscal departments had not been materially altered since the time of the Norman Conquest. There had been no attempt to adapt their laws to the altered circumstances and the new conditions of modern life. While every other portion of the United Kingdom had had its institutions re-cast, those in the Channel Islands had remained stationary and stereotyped. They were a sort of constitutional or local Rip Van Winkles. While the other parts of the Kingdom had been progressing they had been asleep—only their sleep, instead of being of 20 years' duration, like that of Washington Irving's hero, had extended over 20 times 20 years. The facts of the case he wished the House to consider were briefly these:—Colonel de Faby was a French officer. When a young man he served with the French Army in Algiers. Afterwards he held a situation of re- sponsibility and trust in the Civil Service. At the commencement of the war with Germany he resumed his military profession at the wish of the Government, and was given the command of a regiment. He went through all the disastrous campaign on the Rhine—at Woerth, Metz, and afterwards at Sedan. When peace was concluded, along with many other partizans of the Empire, he returned to the Channel Isles. Messrs. Rouher, Baroche, and others went to Jersey. Colonel de Faby, his wife, his father, and mother, went to Alderney. His father had been connected with the Consular Service, and was at that time in receipt of a pension. This was in 1871. In 1872, M. de Faby, sen., died, and shortly after his wife also died. A dispute arose as to the disposition of some property that M. de Faby left. Mr. Clucas, the Judge in Alderney, and his wife, had made the acquaintance of Messrs. de Faby, and when the old gentleman and his wife died Mrs. Clucas alleged that they had left her some jewellery and other property. This statement might be correct, or it might be incorrect—he was not in a position to offer an opinion. Colonel de Faby alleged that Mrs. Clucas had got possession of the property of his father and mother fraudulently, and he brought an action against her in the Alderney Court; but, strange to say, Mrs. Clucas's husband was the Judge, and he actually presided on the case when the charge against his wife was preferred. Such a proceeding might be legal, but he thought the House would admit that it was not altogether decent. When the case was considered the Judge charged Colonel de Faby openly in the Court with being a liar—adding to the phrase a somewhat offensive adjective which he, however, did not care to repeat. The case was removed from Alderney to the Royal Court at Guernsey, and was yet unsettled. The law in those islands was sometimes very prompt, and at other times it was as slow as in the old Chancery Court in this country. Shortly after the death of his parents, Colonel de Faby settled in Guernsey, and with the assistance of some of his friends, commenced a newspaper. The paper was established in 1873, and had a fair measure of success. In 1876 Mr. Clucas, the Alderney Judge, died. Colonel de Faby, in his paper, gave a sketch of his life, and commented upon his career as a Judge and a public man. In this he followed the example of other and more influential papers on the death of any local or national celebrity. It was out of this article that the unhappy dispute had arisen. He (Mr. Cowen) was willing to admit at once that the article was a very severe one. It was written with great smartness and sarcasm. It set forth the career of Judge Clucas in not a very attractive light. He did not defend the article, nor did he apologize for it; but he thought it was only fair to the writer to state that he had had great provocation. It should also be stated that Mr. Clucas himself had either published or caused to be published a pamphlet reflecting on the life and character of Colonel de Faby which was quite as severe, if not more objectionable, than the offending article. Mrs. Clucas commenced an action for libel in the Royal Court at Guernsey. When Colonel de Faby was summoned to appear before the tribunal he found to his astonishment that Mr. Utermarck, the Attorney General had been retained for the prosecution. This gentleman had been retained previously by Colonel de Faby to prosecute Mrs. Clucas for fraudulently getting possession of his mother's property; and yet, notwithstanding this, the gentleman considered there was no breach of legal etiquette or custom for him to turn right round and offer his services to his former client's opponent. English barristers would consider such procedure utterly indefensible. Mr. Utermarck had become possessed of a full knowledge of Colonel de Faby's case from that gentleman's self, and yet he transferred his services to Colonel do Faby's opponent in a case arising out of the same dispute. The simple statement of the fact would in the estimation of all the lawyers in this country be sufficient to condemn the procedure. There was another point in which the case against Colonel de Faby was conducted in an irregular, if not in an illegal manner. It was the custom in the Channel Isles to associate the officers of the Crown with both the plaintiff and defendant in certain cases. The Attorney General was joined to the plaintiff, and the Controller was joined to the defendant. These officers were not to act as advocates, but to use their supposed superior knowledge in guiding the Court when settling all difficult legal points. Probably no one in the House would contest this statement; but he would refer hon. Members to the Report of the Royal Commission appointed in 1846 to inquire into the Criminal Law of the Channel Islands, and which would fully bear out what he had just said—that the Law Officers of the Crown ought to be associated in such cases with both parties to the trial; and that therefore legally Colonel de Faby should have had associated with him the Controller of the Guernsey Court. The Attorney General was with his opponent; but Colonel de Faby had no one associated with his advocate. He stood, therefore, at a great disadvantage in not having his case fairly put before the Court. The House would know that the Court in Guernsey consisted of the Bailiff, who presided, but took no part in arriving at any decision—he simply explained points of difficulty and legal doubt. The Jurats or judges were the parties who were supposed to try the case. The two Law Officers, the Attorney General and Controller, constituted really part of the tribunal, and no Court for trying a case of criminal libel was fairly or legally constituted without the Crown officers were adjoined to both the prosecution and the defence. That was the first disadvantage under which Colonel de Faby laboured, and it was not only an irregular, but, as he contended, an illegal procedure. In the second place, the law in Jersey required that all the witnesses, both for the plaintiff and defendant, should be summoned by the Attorney General, and their expenses paid by the Crown. He did not think the Home Secretary would contest that point either; but if he did, he would refer again to the Report of the Royal Commission. Colonel de Faby, it would be seen, when he went to the Court, was placed in a very adverse position. He found that the lawyer who had been his advocate against Mrs. Clucas had turned round and had become his prosecutor; that the Court was not legally constituted and he was deprived of the assistance that ought to have been extended to him by the Controller being associated with his advocate; and, in the third case, none of his witnesses were in attendance. His case was, therefore, practically undefended. His advocate, Mr. Falla, had given a list of these wit- nesses to the Attorney General, and according to the law of Guernsey, that official ought to have summoned the witnesses. He failed to do so; and, therefore, placed Colonel de Faby at very serious disadvantage. When the case was heard, the Attorney General Utermarck made a very violent speech against Colonel de Faby. Instead of contenting himself with a calm and judicial exposition of the law, he entered into a virulent personal attack upon the defendant, and declared in conclusion that he wished the Court had the power of realizing in practice the well-known couplet— To put in every honest hand a w hip To lash the rascal naked through the world. The Attorney General was required in Guernsey to demand the amount of punishment that should be inflicted. He demanded a fine of £400 upon Colonel de Faby—£200 to go to Mrs. Clucas and £200 to the Crown. It was usual for the Court to halve the demand of the officer; but, in this instance, no opinion was offered by the Court at all. The Bailiff was an old man, 75 years of age, did not hear well, and consequently was not thoroughly acquainted with what took place before him. All that he said on the occasion was, that it was to be regretted that the witnesses for Colonel do Faby had not been called. The Jurats made no comment, and the result was that, without any formal judgment being pronounced, Colonel de Faby was practically sentenced at the demand of his opponent's lawyer, to the very heavy fine that he (Mr. Cowen) had just mentioned. No sooner had the Jurats bowed their acquiescence to the decision, than the Attorney General cried out in Court to the Sheriff to "collar" Colonel de Faby, who was thereupon taken to the Sheriff's office, and a demand made that he should pay the £400, or go to prison as a debtor for the sum. Colonel de Faby was quite unable to meet such an extortionate claim, and he went to gaol. For 10 weeks he was treated as an ordinary debtor, had his victuals supplied, edited his newspaper, and was allowed to conduct his business. During this time the arbitrary procedure of the Attorney General had been the subject of comment in the island, and had been discussed with some warmth in the newspapers. The authorities then adopted a very extraordinary mode of curtailing the sale of Colonel de Faby's journal. The Attorney General, or some of the officials in the island, sent the constables to the different agents and urged them not to sell Colonel de Faby's paper, intimating to them, at the same time, that if they did so they would be liable to the same or nearly similar punishment as had been meted out to Colonel de Faby. This very extraordinary procedure seriously injured the sale of the journal, and no doubt the interference of an officer so powerful as the Attorney General would have an effect in a small island with a population of 30,000 or 40,000, which would fail if in a large community. Soon after, without any notice, a most extraordinary change in the treatment of Colonel de Faby was made. Up to that time he had been treated as he (Mr. Cowen) had said, as a debtor, but afterwards he was treated as a criminal, and transferred from one side of the gaol to the other. It would appear that the Court, for some reason or other, held a private sitting, and a sort of Guernsey Star Chamber declared that this change should take place. Colonel de Faby was not summoned before the Court, had no notice that his case was to be re-considered, nor had his advocate any intimation that anything was to be done; but in his absence, privately and secretly, the change in his treatment was effected. Anything more unjustifiable and more out of accord with an Englishman's notion of justice he could scarcely conceive. Colonel de Faby was in extremely bad health when he was sent to prison. He was suffering from such an accumulation of complaints as any man that had been through the terrible campaign of 1871 could be well supposed to suffer from. The medical officer of the gaol, with much more humanity and good feeling than the lawyers, declared that if the treatment of Colonel do Faby as a criminal was persevered in he would certainly die. Indeed, he believed this benevolent official gave notice to the governor of the gaol that if he transferred the debtor to the criminal side of the prison, that it would be nothing less than assassination, and he declared that he would take the consequences of the gaoler refusing to comply with the arbitrary order of the Court. Colonel de Faby, although not removed in consequence of the urgent remonstrances of the surgeon, was still kept in close confinement 22 hours out of the 24. The doctor again interfered, and declared that unless a larger amount of fresh air was given and the door of his cell was opened, his state of health was such that he would certainly die. This humane recommendation of the doctor was again complied with; but the case, meanwhile, had excited a large amount of sympathy and attracted great interest in the island. The Lieutenant Governor, the Home Secretary, and the Queen had all been communicated with, and the case of Colonel de Faby had been brought before them all individually. In December last the Lieutenant Governor wrote to Colonel de Faby intimating to him that his imprisonment should terminate in a month—that was to say, six months after the trial—that on January 15th he would be released; but that He would be required to leave the island. On the day mentioned, Colonel de Faby was taken out of prison, and though in a very bad state of health and unable to make much exertion, he was taken to the steamboat in charge of the constable and banished to Jersey. He was not informed why he was sent away—no charge was made against hint warranting such banishment—he was simply deported in accordance with the order of the Governor. He (Mr. Cowen) made no charge against the Governor of acting illegally, as he believed the law permitted the Governor to transport an alien without trial under certain circumstances. The custom was a very old one; but it had been acted upon repeatedly even at comparatively modern times. In 1856, Victor Hugo, Piancini, and nearly a score of French, Polish, and Italian exiles were banished from Jersey by the edict of the Governor. These gentlemen had written severe articles respecting the Emperor of the French. The Governor, in consequence, sent them out of the island without accusation or trial. There was, however, usually some reason, good or bad, for laws of this kind, which, as in this case, gave the Governor of the Channel Islands the power of deportation. The islands were within sight of the French coast, and in time of war it was feared that foreigners in small numbers might land on the shores, promote insurrection, and lead to their occupation by the Queen's enemies. No one, however, would pretend to say that Colonel de Faby was acting in this manner. He was pre-eminently loyal, and there was no one in the island a stouter defender of the Monarchy. He was neither a Republican nor Revolutionist. There had been no political' charge preferred against him. The whole dispute arose out of a purely private quarrel. It was simply a contention about the disposition of certain property, and no one could maintain that such a dispute would endanger the safety of the islands or shake the allegiance of some 30,000 of the most loyal subjects in the United Kingdom. Colonel de Faby was sent to Jersey. His permanent removal would have been absolute ruin, as it would have prevented him conducting his newspaper and carrying on his business. The Home Secretary, however, removed the interdiction upon him after a few weeks, and allowed him to return to the Island of Guernsey, where he now was. These were substantially the facts that he wished to submit to the House. -What he contended was, that in the first instance Colonel de Faby had been treated with great severity. Even admitting that he had libelled Mr. Clucas, the punishment was quite out of proportion to the offence. The trial for libel was irregular and informal, and placed Colonel de Faby at great disadvantage. His imprisonment was attended with unnecessary and uncalled-for severity, and the property that had been seized, and would have been sold, if it had not been for the kind interces-cession of friends—was really not his own. He had lost everything he possessed in France, was ruined both in health and in purse, and the modest establishment he had in Guernsey had been found by his wife's friends. It had not been sold; but at the present time it was in charge of the Sheriff, and if the security was withdrawn the whole of the effects would be at the mercy of the authorities. He thought the case was one for the generous consideration of the Government, and that some restitution should be made to Colonel de Faby. He (Mr. Cowen) had listened to his tale of sorrow and misfortune with very great concern. It was well calculated to excite the commiseration of all humane persons. Colonel de Faby's family had been, and he himself had been ruined by the disasters in France. He was a partizan of the Empire. He (Mr. Cowen) was not a sympathizer with, and had very little respect for the Government of Louis Napoleon; but it was only fair to recollect that he ruled France for the better part of 20 years, that he was the Ally and friend of this country, and there was no more discredit to Colonel de Faby for having been an official of the Emperor Napoleon, than there was in this country having been his Ally. His wife, Mrs. de Faby, was an English lady. Her father was an officer in our Army, four of her brothers had been officers, her brother-in-law was an English General, and another brother was a clergyman of the Church of England. She had a modest but competent fortune, which was lost in the failure of one of the rascally joint-stock banks which scattered such widespread ruin a few years ago. He put their case before hon. Gentlemen, and asked them to consider what they would have said if an English subject living in the Island of Corsica had been treated as harshly and arbitrarily as Colonel de Faby had been in Guernsey? If such had been the case this country would have rung with condemnation of the French Government, whether it had been Imperial, Monarchical, or Republican. He asked them—as they would have sympathized with their own countrymen under such circumstances—to extend the same consideration for this unfortunate Frenchman and his wife in the distressing position in which they had been placed by the illegal exercise of arbitrary power in a portion of the United Kingdom. He hoped the exposure of this case would be a means of moving the Government to take some steps to reform the administration of the Channel Islands. This was only one case. There was constantly occurring cases—not so serious, perhaps, but still very hard cases—where the authorities used their power with great injustice.


said, he would admit that the hon. Member had done good service, in a Constitutional way, by bringing this case under the notice of the House, and thus strengthening the hands of the Government in their endeavours to reform the laws of the Channel Islands. He was not there either to defend those laws or the practical manner in which they were administered—nor did he wish to make any imputation against any officers; but he must say the laws were so peculiar and so repugnant to our feelings that nothing would satisfy him better than to be the humble instrument in working some change. There was, however, he was bound to say, a very great practical difficulty in the way. He believed no subjects of the Queen were more loyal or more devoted to the Crown than the inhabitants of the Channel Islands. They possessed enormous privileges, which they thoroughly appreciated, and they were as loyal as they could be. If hon. Members wanted a specimen of Home Rule they had it in the Channel Islands. This question of the state of the law of the Channel Islands was no new matter to either the Government or that House. As far back as 1846 and 1847 a Royal Commission made an inquiry respecting the Channel Islands, especially with regard to the criminal law, and for 30 years their Report had been before the House. The difficulty was that the people themselves did not wish to change their laws, some of which were most extraordinary. For instance, all the jurats were elected by the people. He had a case before him the other day when one of these jurats became bankrupt under circumstances by no means creditable, but quite the reverse. He was asked to interfere and dismiss him, and put some one else in his place; but he found he had not the slightest power to do so. There was a great difficulty in reforming the laws of the Channel Islands, because the people would not attempt to reform them themselves. There was likewise this peculiarity in the Channel Islands. Although we might pass an Act of the Imperial Legislature to govern these Islands, yet until that Act was registered in the Royal Courts in the Islands it had not any effect there at all. It was true that the Secretary of State was invested with certain arbitrary powers, but he would never think of resorting to them. He had, however, done his best to induce the people to have the laws changed, and he was still continuing those endeavours. When there was a vacant position in the Island of Jersey last year he appointed a man on the express understanding that he was to assist him (Mr. Cross) to the best of his power in endeavouring to bring about a reform. Therefore, so far as that part of the case was concerned, the hon. Member might rest assured that it was not one which he could possibly advance at all. He would not lose sight of the subject, because he would very much like to see a reform established. To come to the individual case which the hon. Member had brought forward, he had not a word to say against the manner in which it had been stated; and if he made one or two remarks he trusted the hon. Member would not think he was doing so in order to prejudice this particular case. In discussing this case he thought he was discussing the conduct of the Law Officers and other officers of the Island; and the hon. Member must admit that whatever might have been the provocation in the first instance, the libel at all events was gross. He believed it was true that, although Colonel de Faby had served very gallantly in the Army, yet matters had been brought against him before he left France of a somewhat serious character. When, however, he went to live in Guernsey he (Mr. Cross), had no reason to suppose that he conducted himself in any other way than as an ordinary citizen, except that in the newspapers the libels which he published were very gross. On the part of the Lieutenant Governor he must say that the articles which Colonel de Faby had written in this newspaper since the charge was made against him were such as the hon. Member for Newcastle would be the last to defend. The hon. Member complained of the husband of the party acting as a Judge. He (Mr. Cross) had nothing to say in defence of that. He would not now go into the case of the Attorney General, because it was Colonel de Faby's intention to prosecute him in the Courts of Law, and it would be wrong for the Secretary of State to say anything that would prejudice the trial. As to the summoning of the witnesses, he was informed that the case of libel was one in which the ordinary practice in this respect was not followed. With reference to the place in which Colonel de Faby was imprisoned, he had letters in his possession from the Lieutenant Governor, which he should be happy to show to the hon. Member privately, which showed that every consideration had been paid to him. He ought to have been placed on the criminal side, but he was placed on the civil side and treated as a debtor. He (Mr. Cross) knew that in the Island a great deal had been said against the Lieutenant Governor; but he did not believe that that official ever had one thought across his mind, except to do what was right. As to the question of deportation, he believed it was perfectly true that the Lieutenant Governor had power to de-port persons from the Island. Such a law was recognized by an Order in Council so late as 1846. He was bound to say that, considering the peculiar situation of the Islands, it was a law which it might become very necessary to put into force; but he did not think he should allow it to be put in force, except in very special cases. But in Colonel de Faby's case, he was liable, under the existing law, to have remained in prison for the rest of his life. In the course of the correspondence which passed, the Lieutenant Governor recommended that in default of paying the fine he should be kept in prison for the space of nine months; but on the facts of the case coming before him (Mr. Cross), he thought that, under the circumstances, the man might be liberated at the expiration of six months. He knew perfectly well that there was a great feeling in the Island among his friends, and the Lieutenant Governor suggested that when he came out of prison he should leave the Island. To that he (Mr. Cross) assented; and Colonel de Faby was let out of prison and deported. As soon as the matter came under his notice, he telegraphed to the Governor that deportation was not intended—but he did not know of it until after Colonel de Faby had left the Island. It should be borne in mind that he did not suffer in consequence, as he would not have been permitted to leave after so short a space of imprisonment, unless he had promised to leave the Island. He could not allow any imputation to rest on the Lieutenant Governor with reference to this subject, and he hoped the House would consider that the Lieutenant Governor was not in any way to blame.


reminded hon. Members of the powers of a journal in a small community like Guernsey, and that the libel, which was very gross, would be read from one end of the Island to the other. He thought it was clear that Colonel de Faby had been allowed great privileges during the time that he spent in prison, the offence with which he was charged being one of a very grave character, inasmuch as he had assailed not only the character of a man, but his relations also. He thought that the Home Secretary had done full justice, but still no more that he deserved, to the Lieutenant Governor, under the trying circumstances in which he was placed.


said, that the authorities in the Islands claimed to be independent not only of the Privy Council, but of Parliament. No Englishman who went to the Channel Islands could go there without risk of his personal liberty and loss of his property. No Englishman was safe from being put into prison for imaginary claims of debt. No one could rely on the security of property, so complicated were the conditions on which rights in land were held. The real Judges of the Courts of Law were elected, in a form and out of a class, totally opposed to all the arrangements existing in Europe. The reforms were urgently needed, but so great were the difficulties in overcoming the home rule prejudices of the clique interested in the present bad system, that he could only say that he wished the Home Secretary God speed should he make an attempt to carry out the reforms to which reference had been made.


explained that he had said nothing at all reflecting on the conduct of the Lieutenant Governor.