HC Deb 03 September 1886 vol 308 cc1289-302
DR. CLARK (Caithness)

Sir, I regret that I am compelled to bring some facts before the House on which I propose to move an Amendment regarding the administration of justice in Scotland. I bring these facts before the House because I cannot do it in Committee of Supply, all the Estimates regarding Law and Justice in Scotland being passed. I desire to call the attention of the Lord Advocate and the Secretary for Scotland to past administration, and to bring some cases before them which require to be looked into. The first case I would bring before them is one that occurred in my own county, where four men were kept imprisoned for 66 days, without being tried, for what I believe to have been an imaginary offence, so far as they were concerned. The men have been liberated now and will not be tried. The facts are as follows:—In the middle of December there were two fires—two corn stacks were burnt down in the county—and the Procurator Fiscal called—as is done in Scotland—secretly before him a number of individuals. The offence, as I say, was burning down two stacks, and the following is an example of the questions that were asked these prisoners—these men who suffered 66 days' imprisonment without being tried, and were only liberated when I called the attention of the Lord Advocate to the case, and was going to move the ad- journment of the House to bring the case before the House—then the Lord Advocate wired down to the Fiscal to either try these men or liberate them, and this Fiscal, knowing that the trial would be a trial of himself, preferred in March to liberate the men, though they had been in prison from the month of December. These men have never been tried. Two of them were the only support of an aged mother, who, during their imprisonment, suffered very cruelly; and the families of the other two also suffered. The following, I say, is an example of the questions aske din private of the accused:— You are accused of burning down corn stacks. How many political meetings have you attended? Answer: Four. Have you attended any private political meetings? Answer: None. Did Dr. Clark promise you anything? Answer: No. Did he promise you three acres and cow for your vote? Answer: No. Were you, James Stephens, engaged in taking the horses from Dr. Clark's carriage on the way to the school-house? [Cries of "Order"] I perhaps may have to give hon. Gentlemen an opportunity of going through the Lobbies again.


Will the hon. Gentleman pursue his remarks?


The question was put— Were you, James Stephens, engaged in taking the horses from Dr. Clark's carriage on the way to the school-house? Answer: Yes. And did you help to put the piper in the carriage? Answer: I did. Were your boys there? Answer: They were. Did Dr. Clark pay you well for it? Answer: I never received any payment for it. These are a few of the questions that were put to the men who were accused of burning down two corn stacks, and they are very pertinent to the Question, as the House will see. The result was that the men have suffered over two months' imprisonment. They are now at home, and there is now another individual about to be tried, and that is the Procurator Fiscal. I trust that the right hon. and learned Gentleman the Lord Advocate will cause an investigation into this case, and some of the other cases to which his attention will be drawn. I may say that the Procurator Fiscal is, of course, a factor and agent for a large landed proprietor in the county, on whose land there is a stone quarry, the men employed at which have their wages calculated every three months—the month after the third month they are paid, after an amount is deducted for the meal and corn and other things they have received. These latter facts will be information to the right hon. and learned Gentleman the Home Secretary, who was going to investigate our truck system in Scotland. I may point out that the quarry is worked by gentlemen, one of whom is a member of a firm of practising solicitors in Thurso, and that the son of that gentleman's partner in the legal firm was my opponent at the last Election. That is the reason these men were questioned in the way I have described. Since these men were released a subscription has been got up for them in the county, and of the subscribers I am glad to say I have been one. This Procurator Fiscal also flew at higher game. There is a respectable man in Thurso who has served Her Majesty for 30 years and has retired with the rank of Surgeon General. He committed the crime of being chairman of my committee in a certain district, and he was also brought before the Fiscal and insulted by him. But if the Government inquire into all these facts they will find that these corn stacks were insured a few days before the fire, and investigation amongst the farm servants who built these stacks will elicit the fact that they were put up damp, and were neither fit for man nor beast. And they will probably find that the amount paid by the Insurance Company as the value of the stacks was much more than they would have realized if taken into market. This Procurator Fiscal took the opportunity of bullying this gentleman I nave mentioned, and of keeping James Stephens, who was my deputy chairman in that district, and his son, in prison for 66 days. I hope there will be another trial in regard to this matter. The late Lord Advocate (Mr. J. B. Balfour) ordered that these men should either be released or tried. I trust that the Government will bring about a trial, so that we may know what the facts of the case are. I should also like to call the attention of the Government to the conduct of a Sheriff and a Fiscal in a neighbouring town, and I would also express a desire that these gentlemen should be tried. They have been tried before the Court of Session, and the judgment of the Sheriff has been overturned. I would call attention to the summing-up of the Judge, who condemned a friend of mine, a venerable clergyman, for whom I have great respect, to four days' imprisonment. This gentleman was sent to prison, thrust into a cell, and compelled to wear prison garb. And for what? Why, according to the summing-up of the Judge, the Rev. Mr. Arnold had criminally committed this offence—he had addressed questions at a political meeting which were never in the slightest degree invited. This was at a meeting where a Conservative gentleman was wooing the constituency, a gentleman who had got a very good hearing, although three-fourths of the meeting were Liberals. This gentleman was asking questions; but a few people who were there, especially the local Tory leader, refused to allow him, and put him down and accused him of rioting. A Tory Procurator Fiscal and a Tory Judge, instead of trying the members of their own Party, who unwarrantably interfered with this gentleman in the exercise of his undoubted right to put questions at the meeting, made an unfortunate victim of this gentleman and sentenced him to four days' imprisonment. What, I say, was the summing up of this Judge—this Arcadian Judge? He said this rev. gentleman had put questions which were never in the slightest degree invited; and I daresay hon. Members opposite have found during their election campaigns that questions have been put to them which have never been in the slightest degree invited. But, unfortunately, hon. Members have not had Judges in their districts prepared to send people to prison for putting such questions—for "heckling," as we call it in Scotland. The Judge said one of the questions this rev. gentleman had put was—"Are you going to support the obstructive Conservatives?" And he (the Judge) had said no Member in the House of Commons would allow himself to be called an Obstructive, and there was no Mem- ber who would not feel insulted if asked, when putting up for a constituency, whether he was going to support the obstructive Conservatives. In fact, said the Judge, it was very offensive; and he went on to say that the next question was precisely in the same tone, and was also meant to be offensive, for it was—"Are you to represent us or misrepresent us?" The Judge held that the asking of such a question was a direct insult, and that the observation could not be regarded as a question. He further stated that the result of the conduct of this rev. gentleman was to put a stop to the meeting, because, instead of putting questions, he had exercised the privilege by saying insulting things, or otherwise saying what he must have known was calculated to be insulting to those who were holding the meeting. As I say, this rev. gentleman was sentenced to four days' imprisonment; but the sentence, on an appeal to the Court of Session, was overturned, and the conduct of this Judge—this honest Judge, who was not at all a partizan—was characterized as it ought to be characterized. I desire to bring another case before the House. [Cries of "Divide!"] I will now bring two cases before the House for the sake of the hon. and gallant Colonel opposite who interrupts me. The first has reference to a well-known Sheriff, whose conduct has already been twice brought before the House. I am going to bring to light some new facts with regard to him. Probably we shall very soon have marines and gunboats in the Isle of Skye; the man who has been demanding them is Sheriff Ivory, of Inverness, to whom I am now referring. I submit that in the Isle of Skye things are not what they ought to be, and that there is a reckless spirit growing up amongst the people; but one of the factors producing that state of things is the conduct of Sheriff Ivory and other Sheriffs of the county. I have four affidavits here—I will not trouble the House by reading them—but they are made by four respectable gentlemen, or rather by three gentlemen and a lady. I know them all. One of the gentlemen is the postmaster at Portree, which is the capital of Skye; another is a large merchant in that town; another is his clerk; one is a carpenter and boatbuilder of the fawn; and a clothier and draper, who happened to be in the post office when the Sheriff entered and began to bully the lady who was acting as post office clerk, and to demand that she should commit a crime. He would commit a crime and wanted another to aid him. How can you expect, when the Chief Judge of a county commits crime with impunity, entering people's houses for the purpose, and when evidence to that effect is brought before the Lord Advocate and nothing is done, in fact, that the criminal is screened—how, I say, can you expect that the people of Skye will have much respect for the operation of the Civil Law there? This Sheriff had an impression that one of the lawyers there, who was a Sheriff Clerk Deputy, was favourable to the crofter cause; and he thought that some telegrams sent to Portree would be useful in establishing a case against this gentleman; and he wanted to compel this lady of whom I have spoken to hand him over the telegrams, and when the postmaster came in he tried the same thing on with him. That is a crime—we in Scotland call it a crime—for committing which a man is liable to be imprisoned for two years. The law against telegrams being made known had been violated, and when my hon. Friend the Member for Glasgow (Dr. Cameron) called the attention of the House to the affidavits I have mentioned, the right hon. and learned Gentleman the late Lord Advocate (Mr. J. B. Balfour) said the Sheriff told a different story. Now, we had the sworn evidence of the postmaster, a clerk, and of two tradesmen who were in the office at the time, and yet the late Lord Advocate thought it was of no importance because the Sheriff had told a different story. But since the Sheriff told his story we have got official evidence of the man's crime in the Report he has made to the Commissioners of Supply of the county. In that Report the Sheriff publishes to the world the telegrams which he illegally obtained. I am sorry to say that he was aided and abetted by a Post Office official named Leatham, who ought also to be severely punished. We have got these facts in the evidence of witnesses, and we have got them demonstrated by the official Report which has been laid on the Table of the House, and which has been brought before the Crown Authorities. There is, therefore, no doubt that Sheriff Ivory committed this crime; but I suppose we shall be told again that after all this Sheriff is universally respected. I should like to know how it can be expected that anyone will respect Sheriff Ivory after his conduct in this matter? I hope the authorities will try Sheriff Ivory also for the crimes he has committed. Unfortunately, the laws in Scotland are different to those in England and Ireland. We would save the right hon. Gentleman the Secretary for Scotland (Mr. A. J. Balfour) the trouble of investigating these matters if we could have a criminal trial as we could have in England. While the right hon. Gentleman shields criminals—


The expression the hon. Gentleman has used is not a proper one to use in this House, and he must withdraw it.


I beg to withdraw the expression, and to apologize for using it. May I also call attention to the conduct of my own Sheriff?

MR. ISAACSON (Tower Hamlets, Stepney)

Mr. Speaker, will you allow me to ask you whether the hon. Member is permitted to waste the time of the House by relating what appears to me matters which have nothing to do with the Address?


I have no power to interfere.


I desire, Mr. Speaker, to bring to the notice of the right hon. Gentleman what I believe to be illegal acts on the part of the Sheriff of Caithness. I may have been mistaken, but I was always under the impression that under the 51st clause of the Ballot Act, a candidate at a Parliamentary Election had a right to be present at the counting of the votes. The Ballot Act applies to England as well as to Scotland, and in England it has been decided that candidates have the right to be present when the votes recorded are being counted. I presented myself at the Sheriff's Court, but the Sheriff refused to allow me to be admitted. I retired to look up the Act and to consult with my agent. I returned to the Court, and told the policeman who refused to admit me that I was going in, and if he prevented me I would have him pulled up for assault. He called his sergeant, who assured me he had instructions from the Sheriff to keep me out. I know some of the hon. Gentlemen oppo- site sympathize with illegal acts. Let me mention a few more of such acts committed by my Sheriff. Candidates are compelled to deposit a certain sum of money, and Returning Officers are by law compelled to send in their bills within a certain day, otherwise they are barred. My Returning Officer sent in his bill five days after date, and it was accordingly barred. My agent committed an illegal act by condoning the matter. Ten days afterwards the Sheriff sent in another bill, but I was not to be caught napping—I refused to pay it. If the Sheriff had liked he might have applied to the High Court to get the matter rectified, but he simply kept my money until Parliament ended.

MR. WEBSTER (St. Pancras, E.)

Mr. Speaker, I should like to ask you if the hon. Gentleman is in Order in relating the circumstances of his Election contest.


The hon. Gentleman is not out of Order; but it is quite obvious he is taxing the patience of the House.


I regret that I should tax the patience of some hon. Members in bringing before the House what are, undoubtedly, illegal acts on the part of very important officials in the Highlands of Scotland. At the present time, a spirit of lawlessness is abroad in Scotland, and as Sheriffs are as much infected with it as crofters I think I must still tax the patience of some hon. Gentlemen by bringing other facts before the House. In this case the Sheriff acted in a way he ought not to have acted—he acted illegally. I have one more fact regarding the administration of justice for the right hon. Gentleman the Secretary for Scotland (Mr. A. J. Balfour). In 1884 we in the Highlands got circulars inciting to crime. We brought these circulars before the right hon. and learned Gentleman the Lord Advocate (Mr. J. B. Balfour). My friend the late Member for Argyllshire (Mr. Macfarlane) on the 17th of July, 1884, called attention in the House to the character of the literature. The Lord Advocate said that he would make inquiry. The same circular was read two nights ago by the right hon. Gentleman the Secretary for Scotland (Mr. A. J. Balfour). I thought I had seen or heard of it before, and when I asked the right hon. Gentleman whose circular it was—

MR. GENT-DAVIS (Lambeth, Kennington)

I beg to rise to Order. I desire to ask you, Mr. Speaker, whether you do not consider the hon. Gentleman is trifling with the time of the House?


I have already said I have no power to interfere with the hon. Member.


When I asked whose circular it was, the right hon. Gentleman said I knew something about it.


I did not say anything of the kind.


I called out who circulated it, and the right hon. Gentleman said—"Perhaps you know best," and there was great laughter on the other side of the House. I do not want to trespass any further on the patience of hon. Gentlemen. I agree with them that we ought not to transact such Business between 1 and 2 o'clock in the morning; and I hope that, by-and-bye, we shall be found adjourning each night at half-past 12. I will conclude by moving, as an Amendment to the Address— And humbly to represent to Your Majesty that there is pressing need for reform in the administration of law in the Highlands and Islands of Scotland. I hope the right hon. Gentleman the Secretary for Scotland will consider these matters. During the ensuing winter there will probably be trouble in these districts of Scotland. If writs are issued in the Island of Skye, probably there will be more gunboats and marines required there. I hope that anyone who breaks the law, be he either crofter or cottar, Fiscal or Sheriff, will be punished; and I hope the right hon. Gentleman will see that Fiscals and Sheriffs as well as crofters and cottars are tried if they do wrong. And the right hon. Gentleman might also, at the same time, see that when the Judges are in Session they ought not to make political speeches, especially regarding prisoners who are awaiting trial.

THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)

At this hour (1.15) I do not intend to detain the House at any length; but, inasmuch as the hon. Member (Dr. Clark) has thought proper in the course of his observations to make serious accusations against gentlemen in responsible positions, I think it is right I should say a word or two before the House deals with the matter. The hon. Member spoke of a case in which two men had been detained in prison for a period of 66 days without trial, and he suggested that they were so detained out of spite on the part of a Tory Procurator Fiscal. The hon. Member is quite mistaken in supposing that any such thing is possible, and for this simple reason, that no one can be detained in prison after commitment by the Sheriff except under the orders of the Crown Counsel, and during the whole time these men remained in prison the Crown Counsel were the representatives of the Party who sit opposite. The hon. Member has also called attention to a number of questions which are said to have been put by the Procurator Fiscal to these men. If such questions were put in the course of an official examination, I have no hesitation in saying they constitute a gross breach and dereliction of duty on the part of the Procurator Fiscal, and, certainly, if the questions appear in the official declaration, they must call for serious deprecation. In the meantime I do not think it is possible they can appear in the official declaration. As regards the case to which the hon. Member refers, and in which a rev. gentleman was sentenced to four days' imprisonment, I have nothing further to say except this, that it was brought up by way of appeal, and justice done as far as it could be done by the rev. gentleman being liberated within 24 hours, and by the sentence being set aside by the Superior Court. If the rev. gentleman had any ground for accusing any person of having acted maliciously, he had the ordinary remedy under the Civil Law. As regards the case of which we have heard so often, the case of the inspection of certain telegrams in the Island of Skye, I do not know the exact facts so as to be able to give any opinion as to whether the Sheriff acted with perfect discretion in the matter or not; but I think it should be distinctly understood by this House, as the opinion of the Law Officers of Scotland, that where it is necessary for the preservation of the public peace, and for the purpose of preventing justice being defeated, a Sheriff of a county would be perfectly entitled to stop the sending of telegrams inciting the people to create disturbance and to resist the law. In my opinion, a Sheriff would be entitled to go a great deal further; he would even be entitled to cut the wires. Whatever the Rules of the Post Office may be, the Sheriff, in the exercise of his judgment, is entitled in a case of public disturbance to deal with the telegraph wires as may be necessary for the purpose of preventing justice being obstructed by any person who attempts to use them for the purpose. That is my distinct opinion. Then as regards the statement of the hon. Member (Dr. Clark) that he and his friends are placed in a difficulty in Scotland inconsequence of prosecutions being taken at the instance of the Public Prosecutor, he is in that respect entirely mistaken, because if he or any of his friends think they can sustain a criminal prosecution, they are perfectly entitled to endeavour to do so, provided they have any substantial interest in the charge brought. The Public Prosecutor cannot refuse his concurrence in any case in which the private prosecutor thinks he has cause of complaint. Aspersions have been cast upon the administration of justice in Scotland; but while it is open to any person to prosecute if the Public Prosecutor will not take up the case, so satisfied are the general public of Scotland that all cases that ought to be prosecuted are only prosecuted by the Crown, that during the whole course of my professional experience I have never known one case of private prosecution. Now, Sir, in reference to the counting of votes and to the hon. Member (Dr. Clark) being excluded from the room, I am rather inclined to think that if the manner and tone of the hon. Member were pretty much the same as we have seen him occasionally adopt in this House—


The right hon. and learned Gentleman is not entitled to use that expression, and I hope he will withdraw it.


I withdraw it, Sir; I had no intention of speaking offensively. I will only say that if the hon. Member felt he had cause of complaint he should have complained at the time and in a proper Court. He was perfectly entitled to have the matter brought up at the proper time. As he did not choose to bring it up then, I maintain it should not be brought up now. Lastly, Sir, with regard to the question of the Returning Officer of Caithness having acted illegally in the matter of expenses, surely that is a matter concerning which the hon. Gentleman had a civil remedy. Apparently he was advised he had not so good a case as to justify him in taking advantage of the remedy the law provided.

MR. J. O'CONNOR (Tipperary, S.)

I desire to say a few words on one branch of the subject introduced by the hon. Gentleman the Member for Caithness (Dr. Clark), and in doing so I trust it will not be thought I am wasting the time of the House. The hon. Gentleman referred to the matter of private inquiry, and it is to that matter I wish to refer. I wish to do so as the victim myself of maladministration of justice in this respect; but in order that I may not be misunderstood, permit me to say that I approve of the system of private inquiry where a person charged with an offence may nave the power of exculpating himself if he desires to do so. I believe if the system had been generally adopted, it would not have been necessary for the Home Secretary to have exercised his power as he did on many late occasions when, after the confession of the criminals, many innocent persons were released from prison. I desire, by way of illustration, to cite to the House my own. experience of a private inquiry, and to point out how injustice may be done to an individual by the tyranny and bullying and the overbearing manner of the magistrates who are employed to carry on the inquiries. A few years ago I was summoned to appear before an inquiry held in Cork to state what I knew concerning most horrible transactions—namely, the blowing up of public buildings by dynamite, and the taking of the lives of Her Majesty's subjects. I attended before the secret inquiry, but I laid it down, as a condition to answering any questions, that I would not be asked any that had no bearing on the matter set forth in the summons. The magistrate got very wrath indeed, and endeavoured to bully me out of my decision. I was firm, however, and I told him that on no account would I recede from the position I had taken up. I would answer no questions unless I understood from him that he would confine himself to the matter set forth in the summons. He endeavoured by threats of imprisonment, and by every system of bullying he could employ, to compel me to be sworn. I declined to be sworn unless I got the assurance I asked, and he accordingly sent me to prison. I remained in gaol a week, and when I again appeared before the inquiry the same system, though to a more severe extent, was adopted towards me. The magisstrate seemed to have worked up his anger to an extraordinary pitch because, when I appeared before him the second time, he could scarcely conceal his anger. He actually sat there with a revolver in his hand, and many hours he kept me before him, and by threats and every other means he could employ tried to get me to recede from my position. I declined to do so, and a second time he sent me to prison; and I think if it had not been for the intervention of my Friends on these Benches, the same magistrate would have continued to send me to prison week after week. I merely relate these circumstances to show that there is much reason in the Amendment of the hon. Member for Caithness (Dr. Clark). It may be asked why I declined to be questioned as to matters not specified in the summons. I did so because I knew that already there had been summoned before the magistrate no less than 200 young men, each of whom had been examined upon his whole life. According to the terms of the Act under which they were summoned, they were bound, if they once allowed themselves to be sworn, to answer every question the magistrate thought fit to put to them under the pain of a penalty of six months' imprisonment. The administration of justice is a very serious matter, and if you increase the power of your magistrates, it is a duty incumbent upon the Government to see that the magistrates are fit and proper persons to exercise stringent powers. I do not oppose it—certainly if it be proposed, and if I have the honour of a seat in this House, I should not oppose the introduction of a measure that would give power for secret inquiry. I believe it would be of benefit to the people charged. I believe that the whole presumption of English law, as it stands at present, is wrong on the subject. I hold and maintain that if you increase the power of magistrates, you must be exceedingly careful as to the character of the men you employ to exercise the power. It is for that reason I rise to support the Amendment of the hon. Member for Caithness—it is to impress upon this House that there is much reason in what the hon. Gentleman has said; it is to impress on the Government that wherever these powers exist—and I believe they do exist in Scotland—the Government should be careful the powers are exercised by judicious and responsible persons.

MR. W. A. MACDONALD (Queen's Co., Ossory)

A matter of great public importance was raised by the remarks of the right hon. and learned Gentleman the Lord Advocate (Mr. J. H. A. Macdonald). I understood him to say that, according to the law in Scotland, under certain circumstances which he described it was possible for telegrams to be inspected by a Sheriff, by virtue of his own authority, and possible even for a Sheriff to cut the wires. Now, I want to know whether that is really the law in Scotland, or the law in England, or the law in Ireland, for it does not seem to me it ought to be the law in any civilized country in a state of peace? For this reason I most earnestly support the Amendment of the hon. Member (Dr. Clark).

[The Amendment being informal, was not put.]

Question, "That this House doth agree with the Committee on the said Address," put, and agreed to.

To be communicated by Privy Councillors.

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