§ Clause 1 (Inquiry by order of Attorney General).
§ MR. MAURICE HEALY (Cork)
I rise to move, in page I, line 23, after "thereto," to insert—Provided, that in no case shall a summons be issued, requiring any person to attend at an inquiry under this section, unless by information on oath and in writing it has been made to appear that there is good reason to suppose that such person is able to give material evidence touching the subject of such matter of such inquiry.This is an Amendment to provide that no summons requiring any person to attend an inquiry unless, by information on oath, it has been shown that there is good reason to suppose that he is able to give material evidence. Now, we all know that in the working of the Crimes Act there were a number of respectable persons dragged up in a secret way, mid detained for no other purpose than to subject them to annoyance, seeing that they were persons who could not possibly know anything of the matters proposed to be investigated. I think it ought not to be in the power of any local Resident Magistrate to go fishing for evidence, and for that purpose to direct to appear before him every person he may choose to lay his hands upon. I am of opinion that, previously to requiring any person to attend for examination before this secret inquisition, an information should be sworn that the person swearing has reason to believe that if a certain person were examined valuable evidence might be obtained from him. I trust that it is not intended to make this a Star Chamber Clause. There would clearly be no difficulty in complying with the conditions laid down in this Amendment—namely, that before any person is brought up for examina- 1586 tion, some person worthy of belief should express an opinion in writing and upon oath that if the witness were brought up he would be able to give evidence material to the inquiry. I can imagine nothing more reasonable than such a proposal, and if we are to have any concessions at all, this is a point upon which I think the Government ought to give way.
In page 1, line 23, after "thereto," insert— "Provided, that in no case shall a summons be issued, requiring any person to attend at an inquiry under this section, unless by information on oath and in writing it has been made to appear that there is good reason to suppose that such person is able to give material evidence touching the subject matter of such inquiry."—(Mr. Maurice Healy.)
§ Question proposed, "That those words be there inserted."
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. HOLMES) (Dublin University)
The Government have already accepted an Amendment, proposed by the right hon. Gentleman the Member for Wolverhampton (Mr. Henry H. Fowler), which substantially carries out the suggestion of the hon. Member, and affords sufficient protection—namely, that the magistrate should examine witnesses whom he has reason to believe capable of giving material evidence concerning such offence. We do not accept the Amendment now proposed by the hon. Member for Cork (Mr. Maurice Healy), because the Committee must be aware that the inquiries to be conducted under this section must be kept within duo limits, and that there should be no unnecessary mode of procedure which would have the effect of delaying the time when it might be absolutely necessary to hold the inquiry. If it were requisite to obtain affidavits from a number of quarters, from persons who have good reason for believing that a witness about to be examined can give material evidence, there would be delay. It would also be necessary to introduce a number of other Amendments, which would throw unnecessary obstacles in the way of holding the inquiry which the Committee has again and again declared to be essential.
§ MR. T. M. HEALY (Longford, N.)
The learned Attorney General for Ireland has entirely forgotten that his stock case is the Phœnix Park murders. 1587 The right hon. and learned Gentleman says it is absolutely necessary to reject the Amendment, because, if it were accepted, it would prevent the expeditious working of the clause. Now, the case which the Government have made for the passing of this clause is based upon the assassinations in the Phœnix Park. But what is the fact? The Phœnix Park murders were committed in the month of May, and, as everyone knows, no inquiry took place until November; therefore, six months elapsed before anybody thought of holding an inquiry, and yet we are now told by the Irish Attorney General that the object of this clause is to enforce the same practice as was followed in the Phœnix Park case. When we propose an Amendment that no person shall be brought up needlessly without some proof that it is probable he may give material evidence, we are told that the ground of refusing that Amendment is that this provision of the Bill must be worked expeditiously. I maintain that the Government ought not only to use reasonable, but consistent arguments. The Irish Attorney General must be very well aware that if the Bill is passed without this provision inserted, it will entail enormous expense on the taxpayers of this country, and for this reason—I have already told the Committee that the carrying out of law and order in Ireland costs the British taxpayer ten times more than in England. It is proposed by this Bill that the expenses of witnesses shall be paid by the Crown, and there is no check against witnesses being brought up in undue number for no particular purpose. Whatever check there may have been hitherto is swept away at one blow. The right hon. and learned Gentleman has referred to affidavits. Now, the Amendment does not refer to affidavits, but to an information — an information on oath and in writing. I cannot see what difficulty there would be in getting a police constable to lay such information. Let me point out that the Government have at their disposal in every district in Ireland a large force of constabulary. English gentlemen may not believe it, but there is scarcely a square yard in the country where a policeman is not planted. Go up to any mountain and you will find a police barracks in the distance and a police station in every village. The police are spread all over 1588 the country. I believe there are 12 policemen in Ireland for every one in England. It cannot, therefore, be from a want of persons to lay these informations that the Government object to the Amendment. What can be more reasonable, when the Government desire that the character of respectable men should be taken away, that they should be brought before Resident Magistrates, kept for long hours from their homes and occupations, and subjected to an inquisition of an unpleasant and degrading character — what can be more reasonable than that someone should be required to say on oath—"I believe this person will be a material witness?" We are told that we have been wasting the time of the Committee, and yet reasonable Amendments of a substantial nature are refused by Her Majesty's Government, with no plea except that their consideration may take up time, although I have pointed out that in the Phoenix Park case the inquiry was not made until six months after the murders. The Irish Attorney General opposes this Amendment on the ground that it would undoubtedly delay inquiry. I am sorry that the English Attorney General is not present; he does not seem so much imbued as his right hon. and learned Colleague with the idea that it is necessary to oppose all Amendments. All I can say is that in this instance the right hon. and learned Gentleman has given a very bad reason for opposing a very good Amendment.
§ MR. BRADLAUGH (Northampton)
May I be permitted to ask whether it will be possible to present each day with the Paper of Amendments a copy of the clause already passed? It may be perfectly true that an Amendment proposed by the right hon. Member for Wolverhampton (Mr. Henry H. Fowler) meets this point; but as the clause stands on the Paper it does not enable me quite to follow the bearing of the Amendment which the Government accepted. I would suggest that the Government should print at the top of the Paper of Amendments, each day, that part of the clause which has already been passed.
§ THE CHIEF SECRETARY FOR IRELAND) (Mr. A. J. BALFOUR) (Manchester, E.)
I think the suggestion is, in substance, a good one, and I will consult the authorities of the House in order to see 1589 whether there is any practical difficulty in carrying it out.
§ MR. MAURICE HEALY
I cannot imagine anything more reasonable or more necessary than the provision which this Amendment contains. I wish the Committee to understand what the rationale of the matter is. The Government come down to the House and say that, owing to the state of things in Ireland, the considerable number of crimes which are being committed, and the difficulty of obtaining the evidence necessary to procure a conviction, it is necessary to call in the assistance of the Resident Magistrates in order to hold a preliminary inquiry. For that reason they have provided the machinery contained in this clause, which enables a secret inquiry to be held, and any person to be summoned to give evidence before it. What follows from that? It follows that every man brought up before this secret inquiry will be under the necessary implication that he is seized with some personal knowledge in relation to an alleged crime, and that he is suppressing that knowledge for an improper reason. Therefore, he may be summoned to attend the inquiry, and the mere fact that he is summoned is, ipso facto, a slur on that man's character and a declaration that he is connected in some way with crime, and has some reason for suppressing what he knows about it. I think it is a very grave matter for the Government to insist that they should have power to cast that slur upon the character of respectable persons without, in the first instance, requiring the slight formality to be gone through of having a sworn information laid. The Attorney General for Ireland talks about an affidavit, as if the swearing of an affidavit or of an information is a most tremendous business. We know pretty well that in every police barracks there are hundreds of these informations, printed in a common form, ready to be sworn, and the swearing of them in any particular case would not take five minutes. One might be misled by the impression conveyed by the Attorney General that the swearing of an affidavit is a tremendous and cumbrous business. It is nothing of the kind. An affidavit might be sworn in two minutes. An affidavit of this kind is a common form of affidavit—an affidavit which could be printed in readi- 1590 ness to be filled up. All that would be necessary in reference to it would be to fill in the name of the person to be summoned, and to require the man laying the information to read it over, swear to its truth, and take it before the nearest Justice. It is monstrous to say that going through a slight formality of that kind would in any way impede the operation of the law or delay its administration. We are told that the Amendment which the Government have already accepted from the right hon. Member for Wolverbampton has got rid of the necessity for any further Amendment of this kind. Now, all that the Amendment of the right hon. Gentleman provides is that the Resident Magistrate should believe that the person who is to be summoned is an important witness. On what material is that belief to be founded? We know perfectly well that it takes very little to satisfy a Resident Magistrate. The whisper of a landlord, or of a land agent, or a conversation in a club, would be quite sufficient to satisfy a Resident Magistrate. What we want is that, before a man is de-graded by being dragged before a secret inquiry of this sort, someone should have pledged his oath that a necessity for examining him existed, so that a needless degradation may not be inflicted upon him. The Amendment moved by the right hon. Member for Wolverhampton was a very proper one, but it is only one step in the matter. What I desire is not only that the Resident Magistrate should be satisfied, but that he should be satisfied by an information upon oath laid by some credible person who pledges his credit to the fact that the individual proposed to be summoned can give material evidence touching the subject-matter of inquiry. I say that it is trilling with the Committee to give reasons such as those which have been given by the Government for resisting Amendments of a fair and bonâ fide description. For goodness sake let us have some safeguards for the unfortunate people among whom the Resident Magistrates will be sent down to hold these secret inquiries. Let us have some guarantee that the whole population of a district will not be outraged by being dragged before a Resident Magistrate on the mere whisper of a landlord or a land agent. Let us have a pledge from some person, on oath, 1591 that there is a real necessity for taking this action. I say that it is trifling with the Committee to refuse the Amendment on the flimsy pretext which has been put forward by the Irish Attorney General.
§ MR. O'DOHERTY (Donegal, N.)
I think the Committee will agree with me that the leading principle decided by almost the first Amendment which was accepted by the Government after we got into Committee on this Bill touches this very point. As the Bill originally stood, it provided that the Attorney General for Ireland should believe that an offence had been committed; but on the proposal of the right hon. Member for Wolverhampton that provision was amended, and it was declared that that belief should be founded on information upon oath. Why, then, should the belief of an officer so high as the Attorney General be required to be on the basis of an information on oath, while that of a person occupying a very inferior position, with far less responsibility, is to go round the district and issue warrants founded on his own more belief? When we admit the principle that the belief of a judicial officer is to be acted upon it should be founded upon some sort of evidence, either sworn in Court or upon information on affirmation or oath. One principle we have already decided is that the belief of the officer in a certain matter is to be the basis on which the proceedings are to be taken, and that that belief shall be founded on information. I would go further; I think the right hon. and learned Attorney General for Ireland is mistaken in supposing that these things can be done with the lightning speed he anticipates. The Attorney General must first receive the information, and the information must detail the nature of the evidence. It is then sent to Dublin to be considered, and if Parliament is sitting it may have to be sent over here before it can reach the Attorney General. Therefore, it is ridiculous to say that these preliminary inquiries are likely to be instituted and completed with lightning speed. It will be well known when these persons are to go down to put the law in motion, and surely precautions can be taken to have the informations cut and dried and sworn before the local magistrates. I regret the manner in which the Amendment is opposed. The grounds for opposing it 1592 are of the very slightest nature, and are not at all worthy of the right hon. and learned Gentleman, nor of the Government. I should like to ask the attention of the Attorney General for Ireland to some of the Amendments which appear further down on the Paper. The right hon. and learned Gentleman does not seem to be at present devoting much attention to the discussion.
§ MR. O'DOHERTY
I am very glad of it. There is an Amendment lower down on the Paper to which I wish to call attention now, so that if my hon. Friend fails to carry his Amendment, it may be provided that, at any rate, an information shall be made before any man is arrested upon a warrant.
§ MR. P. J. POWER (Waterford, E.)
I wish to know exactly how we stand. By previous Amendments we have asked that some safeguards should be placed on the liberty of the subject, and that witnesses summoned to give evidence before a private inquiry should have the benefit of counsel. I have no intention of entering into that matter now. All I will say is that that demand was refused. We also ask that there should be a summons in cases that might be dealt with summarily, and that it should not be competent to arrest a witness by warrant. That, also, was refused, and we think it is only reasonable that we should now press the Government to accept the safeguard contained in this Amendment. We regard the whole of this clause as an insult to the well-conducted population of Ireland. It is aimed at the liberties of the people of Ireland, and I certainly think that the Amendment which is proposed by my hon. Friend the Member for the City of Cork is necessary, in order to prevent the entire community from being subjected to outrage and insult. It is the intention of most Nationalists who may be summoned before this inquisitorial Court to refuse to give evidence. We know what the consequence of that refusal to give evidence will be. If persons summoned before this Star Chamber refuse to give evidence, they will be committed to prison for contempt. Then we certainly say that before a person is summoned or arrested by a warrant to give evidence this safeguard should be provided, otherwise it might be a very 1593 easy mode of securing the imprisonment of the present Leaders of the Irish nation—namely, to summon them before an inquisitorial Court with the knowledge that they would refuse to give evidence, and then commit them immediately to prison for contempt. We certainly think that, before a witness is required to attend a Court, an information should be laid that the person intended to be summoned will be able to give material evidence. If some safeguard of that nature is not provided, it will be quite possible for the enemies of all Constitutional agitation in Ireland to ask the Attorney General, or any other person who happens to be in authority, to summon before the Resident Magistrates the whole of the local leaders, and especially such leaders as may have made themselves objectionable to the authorities. It is only reasonable, therefore, that before such men are to be summoned with the knowledge that they would refuse to give evidence, the Resident Magistrates should have some ground to go upon, and should be satisfied that the persons intended to be summoned as witnesses have really material information to give. The Amendment of the right hon. Gentleman the Member for Wolverhampton which was accepted by the Government does, to some extent, safeguard our interests; but most of those who sit on these Benches know, from sad experience, how this measure will be worked. We know that we are surrounded by powerful enemies, and, therefore, I submit that the Amendment of the right hon. Gentleman does not go far enough. I ask the Committee to go a step further, and to endeavour to protect us from what we believe to be a gross insult. The Committee should bear in mind that the clause, as it at present stands, does not merely deal with a district in which crime exists, but deals with the whole of the country. It is quite competent for Dublin Castle, if an information be laid before it that outrages exist in a certain district in Ireland, to summon witnesses from all parts of the country—-not only from those parts where crime exists, but from those in which there has been no crime whatever for a considerable period. Therefore, in the interests of the whole community, it is absolutely necessary that some such Amendment as that proposed by my hon. Friend should be adopted, and I hope he 1594 will continue to press the matter on the attention of the Government, and that he will take the sense of the Committee on the subject.
§ MR. O'HEA (Donegal, W.)
This Amendment is in every respect an Amendment based upon reason and sound common sense, and it affords one of the only safeguards a person may claim who may be summoned before one of these inquisitorial Courts. I know very well flow the rejection of the Amendment may work. Let me mention a certain matter that occurred in the Fenian times. Searches were frequently made for arms. The houses and places of business of respectable men were searched for arms or suspicious documents, solely upon the whisper and secret information of some rival in trade. I know of one instance where a man's house was ransacked from garret to basement in an endeavour to discover arms or treasonable documents. The person thus outraged protested strongly against the course pursued, but he was told by the constables, who knew the man to be a most respectable person, that they were obliged to carry out the search. It transpired afterwards that the search was made at the instance of a personal enemy who told the police that his rival was connected with the Fenian organization, and was suspected of conspiring with that organization for nefarious objects. There was ample proof that the man had nothing whatever to do with the Fenian organization, and that there was no ground whatever for the accusation. The same thing will happen again if this clause is passed as it stands. The Resident Magistrate will be earwigged by some bailiff or an estate or land agent; he may hear a whisper at some county club, or at some landlords' dinner, and he will at once rely upon it as an ample justification for putting the law in motion; whereas if he had exercised proper discretion, and had acted within the scope of his duty, he would have found that there were no grounds whatever for the insinuation. I consider that when persons may be subjected to great inconvenience, and their liberty interfered with, they should, at any rate, be afforded this safeguard—that information on oath should be required from some person or other sufficient to satisfy the authorities that there was a probability, if a witness were summoned, that 1595 he would be able to give material evidence touching the commission of some crime—evidence sufficient to satisfy the Resident Magistrate that it was possible to convict some other person charged with the commission of an offence. Unless this Amendment is accepted hundreds of persons will be summoned, and subjected to inconvenience and expense, without having the slightest remedy or redress, while the perjured informers who will be responsible for bringing them before this inquisitorial Court will go scot free. If, in the first instance, they wore required to pledge their oath to the truth of the allegation, they would probably be altogether discouraged, and would be afraid to swear an information, for fear of the consequences which would be entailed if it were afterwards proved to be false. I maintain that this is the only safeguard which this measure can give to the respectable persons who may be summoned to give evidence from all parts of Ireland touching some imaginary and trumped-up crime or offence.
§ MR. J. O'CONNOR (Tipperary, S.)
The Amendment proposed by the right hon. Member for Wolverhampton, and accepted by the Government, goes only to a certain length, and affects only a portion of the way in which we wish the Government to proceed. It is a very good Amendment as far as it goes, but we wish to enlarge the provision. If it were necessary I could point out instances to show that it is absolutely essential to afford some protection in the direction provided by the Amendment of my hon. Friend. The provisions of the Act will be administered not altogether by Resident Magistrates, who belong to the particular districts in which the crimes about to be investigated have occurred. In the administration of the old Act evidence was generally taken by magistrates who came from a distance. It is provided in the Bill that the Resident Magistrate is to act upon reasonable grounds of suspicion. What reasonable ground can a Resident Magistrate have who comes from a distance, and who knows nothing about the state of the district to which he is sent? He can only act upon information obtained from the police of the district, and what we want is to protect the people from the capricious exercise of the power placed in the hands of the police and 1596 the Resident Magistrates by this Bill. In many instances either the police or the land agent, or others interested, may attempt to get these powers put in force, to the detriment of their neighbours. That is the main reason, in my mind, why this protection should be given. The protection itself is very simple, being merely to provide that no summons shall be issued unless, by information on oath and in writing, it has been made to appear that there is good reason to suppose the person required to be summoned is able to give material evidence touching the subject-matter of the inquiry. Let me point out further to the Government a case in which the provisions of this measure may be administered to the disadvantage of the people. I am acquainted with the case of a man —a Town Councillor—who was summoned before an inquiry of this kind, and it was strongly suspected that he was summoned on a certain day in order that he might be prevented from attending a meeting of the Town Council, where it was known that he intended to vote for a particular measure. What was the result in that case? This gentleman, instead of being detained upon that day only, when called before the magistrate, declined to be sworn, and was sent to prison. This is a case which may possibly occur again. I do not believe, however, that it would have occurred on that occasion if the person who gave the information had been compelled to swear upon oath that he had reason to believe the person summoned was able to give material evidence. In giving this case I am not drawing upon my imagination, and, if I am challenged, I am perfectly ready to give names. It has been pointed out by the Attorney General that there may be delay in requiring an information to be laid. Now, I believe that there will be no delay whatever; but if there were delay, why should there not be a little delay and inconvenience where you are striking at the prosperity, the liberty, and, it may be, the lives, of witnesses who may be brought before the inquiry? I maintain that the Government should be very careful as to the manner in which they exercise these great powers, so that injury may not be inflicted. That, however, is a point which seems to weigh very lightly on the consciences of the Government. The Government seem to 1597 exist in Ireland for the purpose of tantalizing and annoying the subjects of the Queen, rather than to protect them from injury. Under this provision, a man who is daily engaged in business may be summoned. Let me suppose the case of a man who is very largely brought in contact with the public—a man who may reasonably be supposed sometimes to overhear conversations—let me take the case of a publican. Men who are likely to commit crime are men who will probably be found occasionally in the public-house. It would be impossible for a publican, however respectable, to keep out of his house all possible criminals. Let mo suppose, then, that a particular publican overheard a conversation in front of his bar, and a police constable or detective conceived in his own mind that that publican could give material evidence. Well, he states that; he does not know it for a fact, nor would he, if he had any conscience at all, swear that it was so. He is altogether unable to swear that the man can give material evidence; but, as the clause is now drawn, he will be at liberty to go to the authorities and say he has reason to suspect that the man can give material evidence. What follows? Any reasonable publican having a due regard to his own interests would decline to be examined. Certainly he would so decline if he took my advice; and I heard it stated by a right hon. Gentleman the other night that, under certain circumstances, he himself would decline to be sworn. The matter is one which I have endeavoured to illustrate by the case of a publican. I say that a man in that position would be perfectly justified in refusing to be sworn. The evidence itself could only be hearsay evidence, which ought to be received with the very greatest caution by the magistrate himself. These are the reasons why, in addition to what has been said by my hon. Colleagues, I believe there is an absolute necessity for passing this Amendment. I am at a loss, however, to know why we should be troubling ourselves, and losing the valuable time of this House and of the country, by passing this law at all. I think the Government ought to reconsider their position. In reading The Standard this morning—
§ THE CHAIRMAN
The hon. Gentleman must not diverge into the general law; but he must confine himself to the 1598 specific Amendment before the Committee.
§ MR. J. O'CONNOR
I have already expressed the various reasons which occur to my mind for supporting the Amendment; and I hope they will have due weight with the Government. The Mover of the Amendment said that it was only a reasonable Amendment; but I am afraid the Government are indisposed to accept any Amendment, no matter how reasonable it may be. Hon. and right hon. Gentlemen opposite do not seem to have an open mind on the matter. No matter how reasonable the arguments are which are urged in favour of the Amendment, the Government are opposed to everything in the shape of concession. As a result, I believe that the Bill, when it becomes an Act, and an attempt is made to administer it in Ireland, will be treated as it deserves to be treated.
§ MR. P. J. O'BRIEN (Tipperary, N.)
I would earnestly impress upon the Government the necessity of safeguarding the clause by this Amendment, or by some other Amendment drawn upon similar lines. I have some reason to know what the state of feeling in Ireland is in regard to this matter. It is felt that it will lead to any amount of abuse and injustice against private and innocent individuals. Unfortunately, we are too well aware in Ireland of the manner in which Coercion Acts have been carried out by the Resident Magistrates. I have had some painful experience of that myself. I had the honour of being arrested under a Coercion Act Previous to my arrest I had been intimately known to the Resident Magistrate, and everybody knows how closely connected the Resident Magistrates were with the working of that Act. After being arrested I was taken away at a moment's notice, and when I was liberated this very Resident Magistrate, who, I have no doubt, had taken an active part in my arrest, came to actually "welcome me home," and told me "how sorry he was that I should have been arrested," and "how happy he was to find me released." I simply replied to him—"You knew quite as much about mo before my arrest as you do now;" and I did not trouble myself to have further intercourse with him. This clause will enable the Resident Magistrates to bring persons before them as witnesses upon the most hap- 1599 hazard evidence possible, upon the earwigging of a policeman, or upon the ipse dixit of the Resident Magistrate himself. I am satisfied that such a provision will lead to any amount of abuse and injustice. I therefore hope that the Government will take the whole matter into their serious consideration, and allow the Amendment of my hon. and Friend to pass.
§ MR. FLYNN (Cork, N.)
Hon. Members on this aide of the House naturally view this Bill from a very different standpoint from that in which the Government view it. I think, however, that the Government will admit that the provisions of this Bill should be carried into effect with the minimum of injury to the Irish people. The traders and farmers, and others who are likely to be affected, should be protected as far as possible. I do not think the Government would be doing anything unreasanable or anything inconsistent with the fair reading of this 2nd section if they were to accept the Amendment. It has been fully pointed out to the Committee by hon. Gentlemen sitting on these, Benches how injury and injustice may probably arise. There cannot be a doubt that when these Courts of Inquiry come to be held, witnesses, in a large number of cases, will be brought up who know nothing whatever of the alleged crime or offence, and who could not possibly know anything of it. The local constables and the local officials will throw out as wide a net as possible; they will make the meshes as close as possible, in order to haul in fish from every quarter, utterly regardless of the fact that the majority of those who may be summoned can know nothing whatever of any alleged crime. If this Amendment be accepted by the Government, it will, at least, be incumbent on the local officials and constables only to bring before the magistrates persons whom, on a sworn information, they reasonably believe to be capable of giving material evidence. Reference has been made to the inquiry which was hold in Cork in 1883. I have some knowledge of the way in which that inquiry was conducted. I know that a large number of respectable traders and others were taken away from their occupations in the middle, perhaps, of their busiest days, often upon a Saturday or a market day, and they were kept away from their business in attendance 1600 upon the tribunal for the entire day, hanging about the Court, and incurring great loss and injury, although many of them could not possibly have any knowledge of the matters which were being inquired into. I know that a number of respectable business men, some of them in a large way of business, were treated in that manner, and that a considerable number of labourers were thrown out of work in consequence. For instance, a foreman builder was compelled to attend one of these inquiries, and his absence for several days threw a large number of working men out of employment. If a sworn information is required, a large amount of this injury, inconvenience, and loss will be saved. I trust that the Government, in passing this stringent measure, will not avow a total and unblushing disregard for the convenience of the people of Ireland. I hope that, at any rate, they will arrive at the conclusion that the Bill ought to be carried out with a minimum of injury. They hope to get the maximum of result; and, therefore, we are justified in asking them to provide that the minimum of injury, inconvenience, and loss shall be inflicted. I cannot see any reasonable ground which should induce them to refuse to accept this Amendment, which is in no way inconsistent with the spirit of the sub-section.
§ MR. MAURICE HEALY (Cork)
I feel bound to complain that the arguments addressed to the Committee by hon. Members sitting on these Benches have met with no answer from the Government. Perhaps I may be permitted to say that, although the Government may be perfectly satisfied, no conspiracy of silence on their part in refusing to answer our arguments, and the considerations put forward from this quarter of the House, will compel us, in any way, to bring the debate to an end one minute before the proper moment arrives. I will further express a hope that the attitude of hon. Members opposite upon this Amendment will not be the key-note of their attitude towards the remaining provisions of the Bill. I saw it stated the other day in a newspaper which supports the Government that the best way to pass this Bill was to refuse all concessions.
§ THE CHAIRMAN
Order, order! The hon. Member must confine himself to the Question before the Committee,
§ MR. MAURICE HEALY
If you, Sir, consider that line of argument irrelevant, I will not continue it further, but will simply express a hope that, in considering other Amendments, the Government will take a more reasonable course.
§ SIR THOMAS ESMONDE (Dublin Co., S.)
If these provisions are not amended, every honest man will be at the mercy of any malicious blackguard, who will have it in his power to affirm that persons who really know nothing about a particular offence can give evidence with respect to it. Suppose that one person has a grudge against another; there is nothing to prevent him from going in malice and stating that he has reason to believe that the man he accuses is able to give important evidence. Take the case of the Plan of Campaign. It would be very easy for a labourer who may have been dismissed from his employment to go to a police station, and say that he believes the farmer who has employed him can give important evidence about the Plan of Campaign. Whether he is able to do so or not, I do not see why the Government should reject this Amendment. I do not think that it would make much difference to the stringent character of the Bill. It would, however, provide a safeguard against some of the abuses which may follow if the clause is passed as it stands.
§ MR. H. GILL (Limerick)
May I point out a matter in which even this House itself is interested. I believe that it will be possible, with the connivance of the Resident Magistrate, to use the powers conferred by the clause to prevent Members of the Nationalist Party from leaving Ireland at a time when important Divisions are expected in this House. We know that nearly all the Resident Magistrates are of one way of thinking, and that they are supporters of the Government and friends of the landlords, mixing up most intimately in the very matters which will have principally brought this Crimes Act into operation. What is there, I would ask, to prevent some very ardent and zealous supporter of Her Majesty's Government, when there is an important Division coming on hereafter on which, perhaps, the fate of the Government might depend, from summoning eight or 1602 ten Members of this House to appear before a Resident Magistrate to give evidence with regard to an alleged offence? He would easily be able to get people around him to say they believed that these hon. Members could give important information if they were examined. If it were necessary to require that these men should lay an information on oath, I think it would be difficult to induce them to do so, because they would know that they might hereafter be prosecuted for perjury. I do not think that this is an improbable case. We know very well that statesmen are not very scrupulous when the interests of their Party are at stake. We had an instance of that only the other day in the conduct of Members of the present Government in refusing the inquiry we asked for in regard to certain alleged charges which have been made against the Irish Party.
§ COLONEL WARING (Down, N.)
I have no wish to delay the Committee; but I think it is necessary that I should deny that the Resident Magistrates are likely to make the bad use of their powers, which hon. Members opposite pretend to fear. As a matter of fact, the large majority of Resident Magistrates of Ireland owe their appointment to the Government of which the right hon. Member for Mid Lothian (Mr. W. E. Gladstone) was the Head. They are not, therefore, likely to be supporters of Her Majesty's Government, or to make use of the powers entrusted to thorn in any improper manner.
§ SIR THOMAS ESMONDE
In a debate which occurred in this House a very short time ago, letters were produced to show the unworthy grounds upon which Resident Magistrates have been appointed. In some cases application for a post appears to have been made on the ground that the candidate, if not appointed, would take to drink or some other evil course.
§ THE CHAIRMAN
Order, order! This discussion is very irregular, and the remarks of the hon. Baronet are not relevant to the Amendment.
§ DR. TANNER (Cork Co., Mid)
After the remarks which have been made by the hon. and gallant Colonel the Member for North Down (Colonel Waring), I cannot help rising to say what I know about these Resident Magistrates.
§ Question put.
§ The Committee divided:—Ayes 106; Noes 174: Majority 68.—(Div. List, No. 130.)
§ MR. MAURICE HEALY
, in rising to move at the end of the last Amendment the insertion of the following words:—Provided that, in construing the said enactments, an offence for which a person may be prosecuted before a court of summary jurisdiction under this Act shall not be deemed to be an indictable offence;said: This is a very important Amendment, and one upon which I do hope the Government will yield us some concession. Any hon. Member who has studied this Bill will know that one of the most important principles contained in it is to be found in the 2nd clause— namely, that a large number of offences hitherto triable by jury are henceforward to be tried by two Resident Magistrates. These offences will be seen to include criminal conspiracy, intimidation, Boycotting, riot, unlawful assembly, taking forcible possession, assaulting the police, and the various offences that come under the Whiteboy Acts. These are what are called indictable offences, and have hitherto been triable only by jury, though they are, under the Bill, to be tried by two Resident Magistrates. Now, what we complain of is this—that whereas, for their own purposes when it suits them to do so, the Government make these summary offences, in the clause with which we are now dealing they make them indictable offences. Under this Star Chamber Clause there are two distinctions between summary offences and indictable offences. In indictable offences you can arrest a witness by warrant without summons. You cannot in summary offences; secondly, in the case of summary offences if a witness refuses to answer, you can only commit him to prison for a month or less, whereas, in the case of indictable offences, a man can be committed for an indefinite period. What we complain of is this—that, when it suits their own purpose, they make these offences, set forth in the 2nd clause, summary offences for the purpose of having them dealt with by two Resident Magistrates; 1604 but in the clause we are upon for this Star Chamber inquiry these same are indictable offences. This I say is not fair, let these offences be summary offences, or let them be indictable offences; but do not let them vary, and be in the one category or the other just as it suits the Government purpose. It is a case of "heads I win, tails you lose," for the purpose of collecting evidence, these are indictable offences and when you want to convict a prisoner the case comes under summary jurisdiction. This is playing with loaded dice, it is using a marked card, and gives the Crown a most improper and unfair advantage. If the Government say there should be indictable offences let them be so, but do not let an unfortunate person be in this position the Government may shift their ground, treating the case for one purpose as one for summary proceedings, and for another purpose as an indictable offence.
In page 1, line 23, after "thereto," insert the words—" Provided, That, in construing the said enactments, an offence for which a person may be prosecuted before a court of summary jurisdiction under this Act shall not be deemed to be an indictable offence."—(Mr. Maurice Healy.)
§ Question proposed, "That those words be there inserted."
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. HOLMES) (Dublin University)
The 13th section of the "Petty Sessions Act" of 1851, draws a very intelligible distinction between offences punishable by summary jurisdiction and indictable offences, and in the same sense this section must be regarded. If the case is one for summary jurisdiction, a summons issues and the provision is inserted; but if the charge is that of an indictable offence, then it comes under another provision, and we have introduced that provision here. The hon. Member asks us to introduce a further distinction, the effect of which would throw every Resident Magistrate in Ireland into hopeless perplexity, and render it impossible to use the section in anything like a reasonable way. There are certain criminal acts under the law as it stands at present which may be dealt with both by means of indictment or by summary process. Of course, as regards some of these acts the administrators of the law never 1605 think of treating thorn otherwise than as indictable, while, as regards others, no responsible person would deal with them otherwise than by summary jurisdiction; but the criminal act itself is capable of being made punishable either one way or the other. Now, what the hon. Member wants to do is to so construe the section that any offence, how-over criminal, shall be made subject to summary jurisdiction.
§ MR. HOLMES
In this Act. It extends summary jurisdiction as it now exists. As the hon. Member states the object of his Amendment is this—that any of these offences, no matter what the circumstances, shall be dealt with by process of summary jurisdiction; that the provisions of the 13th section of the Petty Sessions Act shall not apply at all. What would be the effect of this? In the 2nd section it will be observed we have a clause in reference to intimidation that extends very little indeed the law as it stands now under the Conspiracy Act of 1875, and is identical in form with a section in the Act of 1882. Any criminal act of the most serious character, such as attacking a dwelling house, an aggravated assault on an individual, such an offence as murder might be an act of intimidation under that section. I need hardly say that no Attorney General, or anyone who puts the law in force, would dream of treating that particular act as a matter to be punished by summary jurisdiction; but if this Amendment were adopted its effect would be to deprive Resident Magistrates of the power which the 13th section of the Petty Sessions Act of 1851 gives them in regard to dealing with indictable offences. As I understand the section it is clear and definite. There must be a summons or warrant issued, and it will bear on its face the instruction that the offence, what ever it is, shall be dealt with by summary jurisdiction or indictment. If it appears to be an offence for summary jurisdiction, then the rules of law applicable to the attendance of witnesses will be applied to it, and if from the document it appears that it is proposed to proceed with the offence as an indictable offence, then the rules applicable to that will apply. That is precisely the law now. Take the case of an assault on a policeman. If it is necessary 1606 to have recourse to a summons to bring witnesses to the preliminary examination, it is printed on the summons if the charge is to be dealt with by summary jurisdiction, and all the rules apply. If, on the other hand, it appears that the charge is so framed that it must be dealt with as an indictable offence, then there are rules to apply. This is reasonable; we propose to extend these provisions to the section, and the Government cannot accept the Amendment.
§ MR. MAURICE HEALY
We quite believe that the Resident Magistrates who will administer the clause are a puzzle-headed sot of gentlemen; but we do not think they are quite so stupid as the Attorney General for Ireland would make them out to be. According to him these intelligent captains, colonels, and others do not know what is an indictable offence and what is not. Before he decries these gentlemen in this way, he might endeavour to point out what the difficulty of Resident Magistrates would be. If the right hon. and learned Gentleman appeared to have a moan opinion of the intelligence of Resident Magistrates, he appears to have a still meaner opinion of the intelligence of this Committee. For what is his argument? That certain offences may be summarily punished, or by way of indictment. He takes the case of a murder committed, and he says that may be an act of intimidation; and, when that is committed, a Resident Magistrate would not know whether to treat it as murder or an act of intimidation. Now, surely that is not an argument to address to this Committee. Does he mean to say that an official to whom he will entrust the working of this clause is so utterly dense, so utterly ignorant—I will not say of all legal principles—but of the commonest information that is to be found in any intelligent person, that he would not know how to treat a serious offence like murder, whether to treat it as the crime of murder or an act of intimidation? Special pleading of this character is hardly worth the attention of the Committee. The point I make is this. The Government have decided, under this Bill, to take for their purpose certain classes of offences as summarily punishable; they say these offences have been indictable in the past, but the character of Irish jurors is such 1607 that we cannot rely on them; we ask, therefore, that these offences shall be summarily punishable by two Resident Magistrates. Well, though asking the House to treat these offences as summarily punishable, they also seek, when it suits their own purpose in another direction, to regard these same offences as indictable. Take the example of a certain class of offences. Let us suppose, say after the passing of this Act, a Resident Magistrate in any district comes to the conclusion that there is a conspiracy among the tenants in the district of the nature of the Plan of Campaign. Let us suppose this takes place a few months after the passing of this Act, which enables the Government, if a conspiracy of the kind is started, to bring the parties concerned before Resident Magistrates, and to punish them summarily with six months' imprisonment. That being so, is it not the height of unfairness to leave at the same time in the hands of the Government the right to take evidence of that kind for the purposes of the Star Chamber Clause, as for an indictable offence? If it is an offence to be summarily punished, let it be so for all purposes, but do not let the Government blow hot and cold and use the offence for the purpose of fishing evidence to make up an indictment. The 2nd clause of the Bill says that a large and important class of offences shall cease absolutely to be indictable and become summary, and thereupon we know where we stand. There should not be this double category of indictable and summary offences as it may suit the Government. They have drawn this Bill in this cunning way— they do not say these shall be summary offences, but that the Government may regard them as such for the purpose of punishment by a Resident Magistrate, leaving them free to regard them as indictable for Star Chamber purposes. The Attorney General has not met my argument. It is idle to tell us that a Resident Magistrate, or any man with common intelligence, will not know when to treat an offence summarily and when to treat it as indictable. The right hon. and learned Gentleman says the warrant to hold the investigation will fix whether the offence is to be dealt with summarily or by indictment. Permit me to tell him that there is another 1608 of those difficulties bungling draftsmanship has introduced into this unfortunate Bill. If he had taken the course of putting on the face of the Bill what the form of the warrant is to be, then we should know what is the value of his argument. But he does nothing of the kind. He does not present the form of the warrant in the Bill. He tells us here, without responsibility, that when, by-and-bye, the Lord Lieutenant comes to draw up an order, he will draw it up in a precise form. But we have no guarantee whatever that the Lord Lieutenant will draw up the warrant in a particular form—promises of this kind must be regarded as those that are speedily forgotten, and when this Bill passes the Committee we shall be left to the tender mercies of the junior barrister the Lord Lieutenant employs, and he will draft the forms of procedure under this Bill. I challenge the Attorney General for Ireland to meet the point I have put before the Committee, and, with great respect, I say he has not done so. Let him tell us how it is possible for even the most stupid Resident Magistrate not to know when an offence is murder and when it is an offence like intimidation. Lot him put any conceivable case in which such a preposterous state of things can arise. Coming under the 2nd clause of the Bill everybody will know at once, the facts being ascertained what is the character of the offence. If the information is that a conspiracy, such as the Plan of Campaign is in existence, the Resident Magistrate will know at once, that it is an offence under the 2nd clause, and so, also, with a case of unlawful assembly, forcible possession, and all the other classes of offences coming under the 2nd clause. It is impossible to say any magistrate with ordinary intelligence can have any doubt on the subject. I say, the Attorney General has not met my argument on the point. It is unfair that the Government should have the double advantage of treating an offence as one deserving summary punishment, and when it suits them again to treat it as an indictable offence. Let us have some surety that officials in Ireland, shall not one day say an offence is punishable under the summary clause by six months' imprisonment, and then again be allowed to make 1609 it an indictable offence with power to summon witnesses indiscriminately to get up evidence.
§ MR. O'DOHERTY (Donegal, N.)
It will be recollected that we had a long discussion on an Amendment of my hon. Friend, with reference to a proposed Amendment of the Attorney General. My hon. Friend wished to leave out indictable offences, showing how the Act would add considerably to the power over witnesses, and that witnesses should be treated in the way provided for summary offences, not as for indictable offences. The Attorney General, I believe, did at the time intend to meet the objections we urged. I ask the Committee to read the Amendment inserted, it comes in immediately after the words "indictable offences," in relation to witnesses being ordered to attend to give evidence upon indictable offences, and, also, in respect to offences coming under summary jurisdiction. I defy any person to make any meaning of it but what my hon. Friend has stated. We accepted the Amendment of the Attorney General in that sense, and I believe at the time he fully intended to have it so understood by the Committee, and, that it was understood by himself, that when proceedings were taken under this Act for summary process, then the ordinary procedure for witnesses would be applicable. But he is clearly wrong in leaving it to the person who issues the summons to treat the offence as for summary jurisdiction and for indictment. Will it not be possible, as the section stands, for an over-zealous man, having first treated the case as an indictable offence, using the greater power over witnesses, and having collected evidence, than to proceed by process of summary jurisdiction? The right hon. Gentleman does not intend that. But there is the power to do so. He has to get information as to an indictable offence having been committed; but what we strongly object to, is that after the means of collecting this evidence is sot in operation, it should be left to this official to adopt the method of dealing with the offence by summary process. You may, under the exceptional powers and penalties against witnesses, collect evidence because a man may not be prepared to undergo the punishment the Court of Inquiry can inflict; but you have this evidence collected by one machinery you cannot 1610 put in force on the hearing of the case itself. Here is a plain contradiction in terms, and I ask the Attorney General to re-consider the matter. We talk in this Committee about summary jurisdiction and indictable offences, and sometimes, perhaps, these terms do not exactly convoy our meaning to Gentlemen not conversant with criminal procedure. No offence can be tried and punished at Petty Sessions, that is by summary jurisdiction, that is not capable of being tried both there and also by a Judge and jury, and so almost every offence triable at Petty Sessions is, in that sense, an indictable offence; and if the Government wish to ride off upon that construction it is another matter. They have not given us that which it was understood they had given us. I ask the Attorney General's attention to this, that a case of the commonest assault can be tried by a Judge and jury as well as by a magistrate—in short, the whole panoply of the law can be brought to deal with a case of this kind. We called attention to this point at the earliest possible stage, and I only wish to say further that my firm belief is, that when my hon. Friend put down his Amendment, his meaning was the same as mine, and that, if I am deceived in this matter in any way, I know it was not his fault.
§ Question put.
§ The Committee divided:—Ayes 139; Noes 178: Majority 39. — (Div. List, No. 131.)
In page 1, line 23, after "thereto," insert— "A resident magistrate, holding an inquiry under this section, shall himself conduct such inquiry, and shall not permit any other person to question or examine any witness or otherwise to take part in such inquiry."—(Mr. Maurice Healy.)
§ Amendment proposed to omit from the proposed Amendment the words, "or otherwise take part in such inquiry." — (Mr. A. J. Balfour.)
§ Amendment agreed to.
§ Amendment (Mr. Maurice Healy), as amended, agreed to.
§ MR. MAURICE HEALY (Cork)
I rise to move an Amendment, the object of which is that in cases where a person is charged with the offence which is the subject of the inquiry, he or his solicitor 1611 or counsel shall be allowed to attend the inquiry and cross-examine witnesses. I think this is a very substantial point, and one which may be very reasonably discussed. The Committee has decided that inquiries under this clause may be held, although no person may be charged with the offence inquired into; they have also decided that they will not allow a solicitor or counsel to attend on the part of any witness summoned. My Amendment is, therefore, a very reasonable one; and I cannot imagine anything more important than that when one of these secret inquiries are being held, and a parson is in custody, that person should have full knowledge of what is going on, and know what is being sworn against him; it is necessary to know that the inquiry is fairly conducted. The point is one on which, I think, some concession should be made, and I trust that the Government will consider the matter.
In page 1, line 23, after "thereto," insert— "Where at the date when any inquiry under this section is held any person shall be charged with the offence in reference to which such inquiry has been held, such person or his solicitor or counsel shall he entitled to attend such inquiry, and to cross-examine any witnesses examined thereat."—(Mr. Maurice Healy.)
§ Question proposed, "That those words be there inserted."
§ THE CHIEF SECRETARY FOR IRELAND (Mr. A. J. BALFOUR) (Manchester, E.)
The hon. Member is, of course, quite within his right in moving this Amendment, but I remind him that an Amendment substantially similar was proposed the other evening by an hon. Member opposite, and, after discussion, withdrawn by him. I, therefore, hope the hon. Member will not raise the discussion again.
§ MR. MAURICE HEALY
I think the Chief Secretary for Ireland is quite wrong in supposing that the Amendment withdrawn by my hon. Friend is in substance the same as mine. If the Amendment of my hon. Friend had been accepted, the moment a person was charged with the offence the whole machinery of the secret inquiry would have ceased to operate. In that case the secret inquiry would be adjourned, and the prisoner would be brought before a magistrate; and the evidence would be subject to the ordinary rules of evidence. But that is quite a different point from that 1612 of my Amendment. What my Amendment asks is that, the Government having decided that the inquiry should be continued, with regard to the prisoner in custody, the prisoner should be represented at the inquiry and know what is going on, so that this knowledge should be made use of for the purpose of his defence. I submit that the difference is a substantial one, and that if the Government do not accept it, they should give some reason for their refusal to do so.
§ MR. O'DOHERTY (Donegal, N.)
I understood that it had been agreed that the proceedings at the private inquiry should be the same as if it were the trial of the offence; but now it turns out that the preliminary inquiry may go on as to an indictable offence, while, at the same time, the man may be tried summarily. My hon. Friend in this Amendment put his finger on the weak spot in the policy of the Government. It is possible now for a magistrate holding a preliminary inquiry to issue a summons as for an indictable offence, in order to see what evidence he can collect under the machinery of the Bill, while, at the same time, another Court is dealing summarily with the same man and the same offence. I think I have brought the right hon. Gentleman face to face with the question whether it is not perfectly clear that the powers now given may be exercised by the magistrate with greater severity than by the Court before which the prisoner is actually on trial. When the hon. and learned Member for North Longford (Mr. T. M. Healy) proposed his Amendment, we imagined that the Government had put forward an Amendment by which the preliminary examination would be conducted as if a trial were going on; but it now appears to be altogether different, and it is possible for a magistrate to have a more far-reaching method of procedure than that on the trial of an individual. If a person were in custody, by the Amendment of the hon. and learned Member for North Longford, he would hear all the evidence long before the trial; and the Amendment would prevent, owing to the presence of counsel, anything wrong being put down. I wish to point out that the Committee has to consider whether or not this Amendment is absolutely necessary, in as much as there are two proce- 1613 dures, one of which is stronger than the other.
MR. HENEY H. FOWLEE (Wolverhampton, E.)
I understand the case to be this—when the private inquiry takes place the witness is bound over under recognizances to appear in Petty Sessions where a prisoner can be dealt with summarily, or where he will be committed for trial. The magistrate who has conducted the private inquiry cannot sit on the examination at Petty Sessions, and whatever evidence is to be used against the man on trial will be taken at the second inquiry, which will be conducted according to the ordinary rules of evidence, and no evidence given at the private inquiry can be used to convict or punish the man. If I am correct in my assumption, I must say it rather weakens the case of the hon. Member below the Gangway.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. HOLMES) (Dublin University)
I have endeavoured to see whether there is any distinction between the Amendment now under discussion and that which was withdrawn on a former occasion; but on the whole I am unable to see that there is any difference in principle between thorn. We stated, on that occasion, our objections very fully, and I am unable to add anything further, especially bearing in mind what has been said by the right hon. Gentleman the Member for Wolverhampton with regard to the accused man—namely, that the depositions must be taken when he is charged in the form of law in which they are taken at the present moment. The man will then have the right to be represented by counsel. It will be upon the evidence taken then, and not upon the evidence taken at the inquiry under this clause, that the man will be tried.
§ MR. O'DOHERTY
We do not want to provide any protection for criminals, but for witnesses. I wish to draw the attention of the Attorney General for Ireland to this—that it is impossible to compel any witnesses to appear before a magistrate unless it be either by taking them by the neck and bringing them there, or by summons. My contention is, that in this case we desire to have a safeguard against the people being dragged by the neck before the magistrates. We are not endeavouring to prolong this discussion, we are en- 1614 deavouring to prevent a process of law being used under circumstances in which great and unnecessary inconvenience may be inflicted.
§ MR. ARTHUR O'CONNOR (Donegal, E.)
I do not think the argument of the Chief Secretary for Ireland is well founded. No doubt the Amendment he referred to was before the House before it was withdrawn, with the view of bringing it forward at another point. I altogether demur to the statement of the Chief Secretary for Ireland. The chief mischief which this Amendment proposes to deal with is this—that the clause enables the Government or the Administration to do that which is perfectly repugnant to all ideas prevalent in this country with regard to the treatment of offenders under the Bill. Unless the Amendment is adopted the prosecution will be in a position in which they are able to take before a secret tribunal every one of the witnesses whom it is proposed to call, or whom it is likely will be called, in defence of the prisoner. The prosecution will be enabled in that way to ascertain the probable lines of the defence, and will practically get a knowledge of what is in the brief of the counsel for the prisoner. Now, I do not think that anything can be more repugnant than that to the feelings of the people of this country. I appeal to any Member whether anything of this kind has ever before been the practice, and whether it is not distinctly a breach of fairplay to treat a man thus, when he is charged with no offence whatever.
§ MR. W. REDMOND (Fermanagh, N.)
I wish to point out to the Committee that, unless this Amendment is accepted, what will occur will be that the man will practically be tried behind his back, and that the subsequent examination before the magistrate will be nothing but a farce, the man having been examined before and practically tried by the Resident Magistrate without being represented by counsel in any way. It is all very well to say that the evidence procured at the secret inquiry will not be used at the trial which subsequently takes place; but it is a well-known fact that the character of evidence is frequently changed by cross-examination. Now, if this Amendment is not accepted, the witnesses will not be subjected to any cross-examination on the part of the accused persons, so that a man may be 1615 in custody for committing an offence, and before he is brought to trial and brought face to face with his accusers, the evidence will have been gone into before a tribunal where he was unrepresented. I think it is against the principles of the Constitution that a man should be tried behind his back, and I do not see what possible objection the Government can have to accept this Amendment, which is very simple and very limited in its scope, and which only asks, that where a man is under arrest, or charged with an offence, he shall be represented by counsel, so that the evidence brought against him may not be unfairly got.
§ MR. T. P. O'CONNOR (Liverpool, Scotland)
I was rather alarmed when the right hon. Gentleman the Member for Wolverhampton (Mr. Henry H. Fowler) spoke against our Amendment, because I am satisfied he is favourable to its principle, and because of his great authority; but I think his suggestion would have been more acceptable if it were not for the way in which law is administered in Ireland. I wish to show that the protection which the right hon. Gentleman believes to be the rule would not be the rule in the present case. I speak, of course, with the greatest modesty on this subject, because I am not a lawyer; but, as I understand the position of the Government, it is that the inquiry should be entirely secret in order to the detection of crime. There I agree with them. But an inquiry might be held where no man has been arrested, and it might he held where a man has been arrested; and I maintain that there is a distinction between the necessity for secret inquiry, in the one case, and the necessity for secret inquiry in the other. I will assume that I am charged with a crime under this Bill, and that my hon. Friend below me is undergoing a process of secret inquiry. Surely I have a right, as I am standing on my trial, that nothing shall take place at the secret inquiry which should be prejudicial to my fair rights as a prisoner standing on my defence? I am entitled, when I am charged with a crime on which a secret inquiry is being held, to all the safeguards which are given in cases where a prisoner is on his trial. Now, my hon. Friend wants, that if I be charged with a crime, my interests shall be protected at the secret 1616 inquiry, and that this shall be done by my legal representative being present on my behalf. But then comes in the objection of my right hon. Friend the Member for Wolverhampton, who says that the evidence given at the secret inquiry will not be used against me, and that, therefore, I do not require the protection which this Amendment is intended to afford. But that is not the case. Anything said by a witness may be brought against him by the way of testing his credibility. Am I correct in this? The Attorney General makes no answer. I will state the point again. I say that anything which a witness says at the secret inquiry may be used subsequently for the purpose of testing his credibility. Will the Chief Secretary for Ireland say whether I am right, because the Attorney General is now showing some traces of the fatigue he has undergone? I see also the Lord Advocate is begging to be let off. But, in consideration of the fact that it is difficult to get him to speak on Scotch law, I shall not waste my strength in asking him to speak on Irish law. I will ask the Attorney General, who may now be said to be "in evidence," whether I am right in stating that the evidence given by a witness at a secret inquiry may be used at the trial to test his credibility. If that be so, the evidence used to test his credibility would be upon my supposition, evidence against me. Well, then, if the witness at the secret inquiry stated that I had committed the crime, and afterwards said that I did not, surely his former statement would be used against me. But does my right hon. and learned Friend know that, in Ireland, under the Crimes Act, witnesses for the defence have been brought before secret inquiries, and that in that way the whole case has been discovered. If you allow the prosecution to discover the whole of the defence of the prisoner, you enormously decrease the amount of fair play and equality which he is entitled to have shown him when he is tried. I speak within the knowledge of my hon. Friends, possessed of legal knowledge, when I say that some of the witnesses for the defence of prisoners have been brought before secret inquiries, and by that means the whole ground has been cut from under them on their trial. Therefore, I think that, without the Amendment which my hon. 1617 Friend (Mr. Maurice Healy) proposes, this clause can be used against the rights of a prisoner, and the fair play to which he is entitled.
§ THE CHIEF SECRETAEY FOR IRELAND (Mr. A. J. BALFOUR) (Manchester, E.)
There are only two possible plans of dealing with the notes or records of the inquiry; they must either be used on the trial or not at all. Hon. Gentlemen opposite have strongly appealed to us to allow the prisoner to have a copy of the notes. Of course, if a copy is furnished, you must allow cross-examination upon them in Court.
§ MR. T. P. O'CONNOR
I do not deny that, that is my statement, and that is exactly the point at which the right hon. Gentleman comes in contact with my hon. Friends. My hon. Friend has pointed out that the depositions taken at the secret inquiry are going to be given to the prisoner, and, therefore, as the right hon. Gentleman properly says, they should also be given to the prosecuting counsel, and that it is right they should be used in cross-examination. Therefore, I say that in the defence of the prisoner, the protection for the prisoner to which my right hon. Friend has alluded entirely disappears. I wish to point out again, that if a witness can be cross-examined as to credibility, so far he is examined to the prejudice of the prisoner in whoso behalf he has said something. Therefore, I think it right that when the secret inquiry is going on where proceedings are taken against me, I have the right to be safeguarded by my counsel.
§ MR. HENRY H. FOWLER (Wolverhampton, E.)
Let me put this case. Suppose a murder has been committed; it may be absolutely necessary to arrest someone at the moment, or he may escape before the preliminary inquiry is taken. By this Amendment being adopted the whole object of the clause relating to crime would be defeated. I said last night that if this clause were confined to crime I would support it. I think it would be a great improvement in English jurisprudence if this were part of our law. I believe there have been many serious crimes committed in this country which would not have remained undetected had this clause been in force at the time they were committed. I can conceive a case in 1618 which the whole use of the preliminary inquiry would be swept away if the Amendment were accepted. It is clear that any evidence taken behind a man's back ought not to be used against him. But how is this evidence to be used? When the evidence is complete the witness is to be bound over to appear before another magistrate, and has there to repeat that evidence. Nothing he has said can be read at the second inquiry; it cannot be used against the prisoner. [An hon. MEMBER: Yes.] Can it be used against him?
§ THE ATIORNEY GENERAL FOR IRELAND (Mr. HOLMES) (Dublin University)
No; and we have provided that the same magistrate shall not preside at the second inquiry.
§ Mr. HENRY H. FOWLER
It cannot be used at all then. The witness will be put into the box, and have to repeat his evidence. But the hon. Member for the Scotland Division of Liverpool (Mr. T. P. O'Connor) says that you may use what has been said at the preliminary examination for the purpose of testing the credibility of the witness. The Government have admitted the principle that what is taken at the preliminary inquiry should be used for that purpose at the second inquiry, and the hon. Member for North Longford (Mr. T. M. Healy) moved that the evidence might be so used for the purpose of cross-examining the witness. I think my hon. Friend will admit that what is fair for the accused is fair for the Crown. Given the principle of the private inquiry, given the principle that the evidence taken upon that inquiry should never be used again except upon oath, and given that the House has decided unwisely, as I think, that the witness should not have the protection of professional advice on that inquiry, I do not see that the mere fact of anybody having been apprehended makes any substantial difference. I am as anxious as anyone that these proceedings should be conducted fairly.
§ MR T. P. O'CONNOR (Liverpool, Scotland)
What about the case I alluded to where witnesses, known to be for the defence, have been brought before a secret inquiry, by which means the whole plan of defence has been revealed?
§ MR. HENRY H. FOWLER
That is an argument against the clause. The Amendment will not touch that point.
§ MR. HENRY H. FOWLER
No doubt, it is a serious objection to the clause that witnesses for the defence may be examined before the prosecutor, who may find out what the defence is; but no provision you can insert regarding the presence of a professional man will prevent that. I do not see how the Amendment could remedy the evil. I will only say that I should be disposed to agree with my hon. Friend if I could follow him; but I think that, assuming the principle of the secret inquiry, and that the evidence given before it shall not be used, and that it is decided that the witness is not to have professional advice at the secret inquiry, I do not think that the mere distinction, in the fact of a person being apprehended, makes any substantial alteration in the condition of the question the Committee decided yesterday.
§ MR. MAURICE HEALY (Cork)
I quite admit that the question incidentally raised in the course of the discussion of this Amendment—namely, the question as to how far the depositions taken at a secret inquiry can afterwards be used at the trial of the offence with reference to which the inquiry has taken place, has an important bearing on the Amendment before the Committee, and I should like to make it clear where we stand on that subject. The right hon. Gentleman the Member for East Wolverhampton has assumed that the Committee has already decided that the information taken at a secret inquiry is to be capable—
§ Notice taken, that 40 Members were not present; Committee counted, and 40 Members being present,
§ MR. MAURICE HEALY
I was saying that, in my opinion, the Committee has not decided this point, an d that the right hon. Gentleman the Member for East Wolverhampton has assumed that the depositions taken at the secret inquiry will be used for or against the prisoner. The furthest step taken in that direction is this—the Committee has decided that a prisoner charged with any offence in reference to which a secret inquiry has been held shall be 1620 entitled, if he so desires, to obtain copies of the depositions that have been taken at the secret inquiry. That is a very different thing to deciding that these depositions can be used for or against him at the trial. It is one thing to decide that he is entitled to these copies—it is only proper that they should be placed at the disposal of a prisoner charged with an offence—but, with great respect, I say that it is quite another thing to decide that, in addition to giving these copies, the authorities shall be able to use them against the prisoner at his trial. That I take to be the stage at which we stand on this question as to whether or not the depositions taken at the secret inquiry shall be used. Now, the right hon. Member for East Wolverhampton has assumed, and the right hon. and learned Attorney General for Ireland has assented to the assumption that the depositions taken at a secret inquiry can never be used against a prisoner. With great respect, I venture to differ from that opinion of the right hon. Gentleman the Member for East Wolverhampton, and from that opinion of the right hon. and learned Gentleman the Attorney General for Ireland, and perhaps I can best illustrate the position I take up by describing what occurred in a criminal case that was tried in my presence in Cork about two years ago. In that case the prisoner was charged with shooting at with intent to murder. The crime was committed in the county of Kerry, and the trial took place at the Cork Winter Assizes before Mr. Justice O'Brien. The sole evidence against the prisoner was the evidence of the man who was shot at, and that person had unquestionably swore at the preliminary investigation that the prisoner in the dock had fired the shot which struck him; but when the case came before Mr. Justice O'Brien, the man who had so sworn went to the back of what he had so sworn and declared to the jury that the prisoner was not the man who had fired the shot. Now, the position in which the case stood before the jury was this. There was not an atom of evidence to go to the jury to show that the prisoner in the dock was the man who fired the shot. The only evidence that the Crown could produce was the evidence of this man who swore that the prisoner was not the man who shot him, who swore to the 1621 features of the man who committed the offence, and said they were not like the features of the prisoner. Well, according to the statement of the law we have from the right hon. and learned Gentleman the Attorney General for Ireland, and from the right hon. Gentleman the Member for East Wolverhampton, the prisoner ought to have been immediately discharged from the dock. But what actually occurred? Why, the Crown, as they were entitled to do, put into the hand of the witness the deposition he had made at the preliminary investigation. They cross-examined him by means of that deposition. He admitted that he had made that deposition—he admitted that he had sworn that the prisoner in the dock was the man who had shot at him, but he now swore positively to the jury that in making that statement at the preliminary inquiry he had perjured himself, and that what he had said was not true. He declared that the prisoner was not the man who had shot him. If what the right hon. Gentleman the Member for East Wolverhampton and the right hon. and learned Gentleman the Attorney General for Ireland say is true, the prisoner in the dock, I say, ought to have been discharged, because though the witness was confronted with his own deposition, that deposition ought only to have been put in evidence for the purpose of contradicting him and showing that he was a person not worthy of credit on his oath. But the learned Judge, Mr. Justice O'Brien, reserved his judgment for the next day. He went over the matter and considered it carefully, and the next day he declared that he had found two authorities for the view, that when once a deposition was in evidence for one purpose it was in evidence for all purposes, and that it was competent for the jury, though the deposition was the sole scrap of evidence before them, to convict the prisoner. They did convict the prisoner, who was sentenced to two years' imprisonment. What, I ask, therefore, is the value of the statement of the right hon. and learned Attorney General for Ireland in face of a case of that kind? We say that that is exactly the sort of case which may arise out of these secret inquiries. We say that persons when brought up at these secret inquiries, unless protection is afforded by publicity, and when they are taken before the Resident Magis- 1622 trates, and questioned and cross-hackled, and, perhaps, intimidated and bribed, may swear away the lives and liberties of innocent persons, and that it is possible when, afterwards, those persons are brought to trial—it is conceivable, I say—that the witness who in the Star Chamber inquiry has given certain evidence may admit that in giving that evidence he had been lying. The state of things appears to be this, that though that condition of things arises, that though the only scrap of evidence against the prisoner is the information of the man who makes the deposition at the secret inquiry, and who at the trial says that his statement was false and that he was perjuring himself and that the prisoner is innocent, it is to be possible to convict an innocent man upon a deposition afterwards declared by the deponent to be false. I say that that is an outrageous state of things, and I say very fortunately, Sir, this Committee has not yet decided that this information should be used in that manner. I say that when the time comes to discuss that matter, we in this quarter of the House shall vehemently oppose the use of information obtained under these circumstances for any purpose whatever. I challenge the right hon. and learned Gentleman the Attorney General for Ireland to contradict my statement of the law as laid down by Mr. Justice O'Brien. I do not know whether he is familiar with the case I have mentioned, but I can assure him it is one which has been alluded to at least half-a-dozen times in this House. It is a matter of notoriety amongst the Bench and Bar of Ireland. I was myself present at the trial and heard what took place. If that is the state of the case, is it not monstrous that an innocent man is to be convicted on the unsupported statement of a witness who at a secret inquiry swears away his life and liberty; is it not monstrous that an innocent man is to be convicted upon a statement which is declared by the person who made it when he has to give his evidence in the light of day before a Judge and jury to be false? No stronger argument could be used in favour of the Amendment before the Committee. I challenge the right hon. and learned Gentleman the Attorney General for Ireland to contradict the narrative of the case that I have given. I quite concede that if the Committee had once decided 1623 that the information to be taken at the secret inquiry should not afterwards be used for any purpose, it might be a strong thing to provide that the person charged with the offence should have counsel before the inquiry; but so long as it is decided that hearsay statements full of the most illegal and improper evidence—statements which would be scouted if it was attempted to make them in any Court of Law—shall be admitted at this inquiry; so long as he is to be fettered by no rule of evidence, or of decency, or of common sense, we say that so long as that state of things exists there is the strongest necessity and urgency for providing that a prisoner who may be cruelly accused at this inquiry shall have the opportunity of knowing what is going on at the time and what slanders are being uttered against him.
§ MR. T. M. HEALY (Longford, N.)
I am sorry we have not the support of the right hon. Gentleman the Member for East Wolverhampton (Mr. Henry H. Fowler). I should like to put this point to him. Is he aware that there is an Irish Statute which states that in cases of murder, where witnesses are dead, their depositions may be used? I believe that is also the law in England that in a case of murder where a witness dies and there is an accused person, and some statement has been made by that deceased person, the deposition of the deceased is put in for all purposes as substantive evidence, although the accused person shall have had no opportunity of examination. The prisoner would have had an opportunity of examination if this inquiry took place before an ordinary magistrate. The prisoner would there be represented; but the Government now wish to use depositions given at a secret inquiry as substantive evidence as though they had been made in an ordinary manner.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. HOLMES) (Dublin University)
Can the hon. and learned Member refer me to a single Statute in which what he states as being the law during the present century?
§ MR. T. M. HEALY
Yes, I can. I could give you the exact Statute if I had time to go to my case and get it. As soon as I have done talking I will go out and get it. Speaking at this moment 1624 from memory, I think the Statute is of George III., of the Irish Parliament. I think it is one of the Whiteboy Acts which sets forth that there is grave danger to the lives of witnesses and so on. It sets out that this thing which I have described should then happen. I say that it is a serious thing, if you are going to allow depositions taken at secret inquiries to be used as substantive evidence, not to give the accused an opportunity of cross-examination.
§ THE ATTORNEY GENERAL (Sir RICHARD WEBSTER) (Isle of Wight)
The hon. and learned Gentleman I am sure does not wish to fix upon us an intention which we have disclaimed over and over again. We do not mean to make these statements evidence at all, certainly not as depositions. If the depositions were intended to be used as evidence cross-examination would be allowed. At the suggestion either of the hon. and learned Gentleman himself or of someone sitting near him, we agreed that if we were going to call evidence against a prisoner over again, as the right hon. Gentleman the Member for East Wolverhampton has pointed out, the statement made by the witness at the preliminary inquiry would be handed to the prisoner's counsel or solicitor in order that they, as well as the prosecution, might have the benefit of cross-examination; but at no stage of these proceedings have we ever proposed that a statement taken down or a deposition should be used as evidence at all, or should be put in or have the least validity as a deposition. The hon. and learned Member is quite mistaken as to the Law of England. He is mistaken in his opinion that it is permissible to use the statement of a dead man as evidence. The hon. and learned Member must be referring to a dying declaration.
§ MR. T. M. HEALY
I did not assert it as a positive fact in regard to the Law of England. I do not gather from the hon. and learned Gentleman—whom I thank for being at all times anxious to assist the Committee—that he stated that in no case will these depositions be liable to be used by the Crown. Do I gather that? You see there is no answer. That is the way to test the matter. Do I gather—and, if so, I will sit down at once—that the Crown will put in and use these depositions?
§ MR. HOLMES
Statements have been made upon this point so frequently that I feel ashamed to answer the hon. and learned Member's question again. I would call his attention to what has already occurred. It has been stated more than once from this Bench that the view we take of these depositions is, and what we are prepared to do is, to provide that they should not be used in any legal proceeding against any person, except a person who might have been committed for perjury. But, yielding to the strongest pressure, after a debate which lasted two hours, we assented to give the depositions of any witness who might be called against a prisoner upon his trial to the counsel of that prisoner, for the purpose of being used in cross-examination. When that concession— for it was a concession—was made by us, I distinctly stated what everyone in the House must admit to be reasonable and fair—namely, that if the depositions were used for cross-examination by the prisoner's counsel, they should also be used for a similar purpose by the representative of the Crown. No one can understand that less clearly than we do. It has been repeated again and again, and if hon. Members complain of it it is their own fault, because it was at their suggestion that the arrangement was made.
§ MR. T. M. HEALY
The right hon. and learned Gentleman has not quite accurately stated what took place. What we asked was that the counsel for the prisoner should have copies of these depositions. If the counsel for the prisoner chooses to make them evidence by cross-examining out of them, then they would become substantive evidence, just as other depositions would. But what the Government wanted to do was this — when the Motion was carried that the prisoner's counsel should have copies of the depositions, they got up and said— "Then we will use them." That was what we objected to, and we object to it yet, and when the Government come to that Amendment, they will not make that proposal unless they want to create a long wrangle. I say the Judge shall rule that the prisoner is entitled to have copies of the depositions, and that if he uses them for purposes of cross-examination so also shall all parties. They 1626 will have been put in definitely by the prisoner's counsel, and no one will be able to object. The depositions then could be used by the prisoner, and the evidence might be given over again. But what we object to is making these depositions, which will be full of hearsay evidence, substantive evidence at the trial, and that is the point of our case for the necessity of this Amendment. This is a remarkable thing, and shows how the views of the Government shift from time to time. When the case mentioned by the hon. Member for Cork (Mr. Maurice Healy) took place, I made a Motion on going into Committee of Supply, and pointed out that it was historically unparalleled, this man having been convicted upon a deposition which in Court was denied on oath by the man who made it—there being no evidence to go to the jury but the two contradictory statements of the same man. Well, what happened? After I had stated my case, Mr. Johnston, then Attorney General for Ireland, but now Mr. Justice Johnston—a gentleman for whose authority we all had and have great respect—got up and supported Mr. Justice O'Brien's ruling. But that is not all. The present Lord Chancellor —Lord Ashbourne—who was then leading the Opposition, got up and supported the proposition to allow a deposition to be used as substantive evidence. Well, then, you now have a Judge in the High Court of Appeal, you have a Judge in the Court of Queen's Bench, and also Mr. Justice Johnston, of pronounced opinion upon this point, and what result could you expect if anyone ventured to dispute the view of this triumvirate. I see the right hon. and learned Solicitor General for Ireland coming into his place. He very well knows the state of the law in Ireland on the point, as delivered by Mr. Justice O'Brien, because he was present during the trial of the case of Cornwell against O'Brien, where the same point arose, and where Mr. Justice O'Brien's attention was called to the decision he had given in Cork with regard to using depositions as substantive evidence. It was voted on his certificate, which he gave for the purpose of a new trial, that he had given this decision in Cork and now confirmed it. That statement of the fact cannot be contradicted. It is the case that in all civil matters you have your appeal; 1627 but in criminal matters you have no appeal whatever. You are depending upon what is called the personal equasion of a particular Judge. He may state a case to the Court for Grown cases reserved, if he likes; but, generally speaking, he will not do so. Therefore, every Judge has you at his mercy in criminal matters; and what are you going to do? We heard, from the right hon. Gentleman the Member for Derby (Sir William Harcourt) that, so far as he was concerned, he would give no hearsay evidence before the Court or before one of thes9 secret tribunals, and that he would take the consequences and allow himself to be committed. But a poor Irish peasant will have no knowledge of the law, and will be examined, not in the Scotch fashion, with an assessor present to decide as to the legality of the questions put, but with the questioner being at the same time the judge of the legality of the question and the person to commit him to gaol for refusing to answer. Hearsay evidence will be extracted from him, and without a prisoner having any opportunity of cross-examining upon, or rebutting that evidence, it will in a moment become substantive evidence. Not only that; but all the witnesses for the defence may be examined. The Government have given us no guarantee that they will not do that, and this system is to continue after the prisoner has been committed for trial. The inquiry may go on, as in the case of the Phoenix Park trial. A private investigation may be going on in the Bar-room, whilst the trial is taking place in Green Street—an informal trial may be taking place at one end of the Court-house whilst the prisoner is in the dock at the other. Very well, the prisoner's witnesses will be examined. How will they get their names? The witnesses must supply their names to the Treasury Solicitor for the purpose of having their expenses paid. All the names of the witnesses will come under the notice of the Treasury Solicitor, who will summon every person whose name is returned as a witness for the defence; the Government will be enabled, by the Amendment they say they intend to pass, to use the statements they have extracted from the witnesses for the defence. If these witnesses refuse to answer they will be put in gaol, and will not be available for the prisoner at all. This is a pretty state of things! This is "Scotch 1628 law," I presume? You will commit the witnesses for the defence, and they will not have an opportunity of giving evidence at all. I do hope, in view of the discussion that has taken place, the right hon. Gentleman the Member for East Wolverhampton will reconsider his position. I consider this matter of unparalleled importance. When a prisoner is accused of an offence, I think his liberty to cross-examine should ensue. I think the Government have not met us in a reasonable spirit, and if they continue by moving the Amendments the right hon. and learned Attorney General suggests, all I can say is, they, will not get out of this Committee till Christmas; for I see an endless vista of mischief which, so far as we are concerned, we shall oppose to the bitter end. If you are going to put additional virus into the Bill we shall take objection to it, no matter what the result may be.
§ MR. T. P. O'CONNOR (Liverpool, Scotland)
I have listened to the whole of this debate, except for a few moments when I was out of the House, and if my hon. Friend below me were to take a suggestion from me, he would not go to a Division on the Amendment, in view of the fact that we shall not have the assistance of the right hon. Gentleman the Member for East Wolverhampton, and the several Gentlemen who are acting with him. I cannot gay that he has convinced me; but we are anxious not to take a Division in which we are not all taking up the same attitude. In this sense, I would ask my hon. Friend to rest satisfied with the very instructive discussion we have had. I would appeal to my hon. Friend to ask leave to withdraw the Amendment.
§ MR. MAURICE HEALY
Under the circumstances, I will withdraw. I do not see the use of going to a Division.
§ Question put, "That those words be there inserted."
§ The Committee divided:—Ayos 141; Noes 241: Majority 100.—(Div. List, No. 132.)
§ MR. T. M. HEALY (Longford, N.)
I wish to make an explanation in reply to a statement made by the right hon. and learned Gentleman the Attorney General for Ireland a few moments ago. 1629 He said there was no Statute in exist-once applying to Ireland under which it is possible to take the depositions of a deceased person as substantive evidence. I refer him to the l5th Geo. III. e. 102, s 5, which fully sets out the fact I stated. I think the right hon. and learned Gentleman will see from this the necessity of being more slender in his correction.
§ MR. MAURICE HEALY (Cork)
Before we pass to the subject-matter of the 3rd sub-section, I am anxious to obtain from Gentlemen sitting on the Front Bench opposite an undertaking as regards a matter that was discussed at some length. I am aware that a desultory discussion would not be in Order, and, if necessary, I will propose an Amendment dealing with the matter; but I think, for the sake of saving time, it may be convenient to allow me to ask a question of the Government. The Committee decided yesterday that persons committed to prison under this clause for refusing to answer shall not be treated as first-class misdemeanants. Now, I want some information from right hon. Gentlemen sitting of the Front Bench opposite as to how, in their opinion, persons so committed will be entitled to be treated. My impression has been, up to the present, that they should be treated in the same way as persons committed for contempt of Court; but, on reading the Petty Sessions Act, I find that it is not at all clear that that is so. The section of the Petty Sessions Act does not use the word "contempt," and does not use any expression that would make that result necessarily follow. My apprehension is this, that the authorities in Ireland would hold that this power of committing1 persons for refusing to be sworn, or for refusing to answer, is a proceeding entitling them to inflict such a punishment as would be inflicted for an ordinary offence. I am sure the Government do not mean that that should be so, but that they mean that the prisoner in this case should be committed as if for contempt. However, I should like to have an express declaration from the Government on this point.
§ THE CHIEF SECRETARY FOR IRELAND (Mr. A. J. BALFOUR) (Manchester, E.)
The hon. Gentleman is not quite correct in stating that we made an assertion that prisoners committed under 1630 this section would not be treated as first-class misdemeanants. We made no statement of that kind at all. All we said was that we would make no distinction between the treatment of persons committed under this clause and the practice prevailing under the existing law in Ireland.
§ MR. MAURICE HEALY
As the answer of the right hon. Gentleman gives me no information at all, I am reluctantly compelled to move an Amendment. It is in these terms—Clause 1, page 1, after the sub-clause just added, to insert the additional sub-clause—A person committed to prison for refusing to be sworn, or refusing to answer at an inquiry-held under this section, shall be deemed, for all purposes relating to prison discipline and regulation, a person committed to prison for contempt of court.I will, Sir, hand that Amendment in to you.
§ THE CHAIRMAN
I am of opinion that we have passed the point when this could be properly introduced. It is really a Proviso affecting Sub-section 2. We have come to the end of the Provisos in connection with Sub-section 2, and we have proceeded to deal with Sub-sections 3 and 4. The appropriate moment has passed for the consideration of this Amendment therefore.
§ MR. MAURICE HEALY
I do not attempt to question your ruling, Sir; but may I ask whether it will not be competent for me to raise this question in some form at some subsequent stage of the Committee?
§ THE CHAIRMAN
I should be reluctant to give a ruling of that kind, but it certainly may be possible at some other stage of the Committee to adopt the Amendment. I cannot say when. I think it is non-admissible here as a separate sub-section, as it is a Proviso that should properly be attached to Subsection 2.
§ MR. MAURICE HEALY
—["Order, order!"]—As a matter of courtesy I ask to be allowed to say a word. I do not wish to discuss the ruling of the hon. Gentleman, but may I ask Gentlemen sitting on the Front Ministerial Bench how they intend to treat prisoners under this section? That is not asking a great deal—I only want information on that point.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. HOLMES) (Dublin Uni-
Prisoners committed under this section will be treated in precisely the same manner as prisoners committed under the 13th section of the Petty Sessions Act, 1851.
§ MR. MAURICE HEALY
I am extremely reluctant to trespass on the Committee; but will the right ton. and learned Gentleman say whether prisoners oommitted under the 13th section of the Petty Sessions Act, 1851, are prisoners committed for contempt of Court? Surely that is the whole question.
§ THE CHAIRMAN
The Question is wholly irregular. I must call on the hon. Gentleman who has the next Amendment on the Paper.
§ MR. WALLACE (Edinburgh, E.)
I wish to ask, in the name of my hon. Friend the Member for Elgin and Nairn (Mr. Anderson), whether on the Amendments you have called on being rejected, the clause will stand as a whole, and he will not have an opportunity of bringing on an Amendment to part of the section? He wishes to move to omit part of the clause.
§ THE CHAIRMAN
The Amendment now about to be moved is to omit the whole sub-section; but the Question I shall put from the Chair will be "That the words 'a witness examined under this section' shall stand part of the Clause." Any Amendment which will come after those words will be open to discussion.
§ MR. P. MCDONALD (sligo, N.)
I propose to say a very few words in putting this Amendment. I may say that it is well understood that, according to the Law of England, statutory powers are given under which a witness cannot be forced to give an answer that may tend to criminate himself. This is the case, not merely as to grave offences, but it is equally applicable to all ordinary offences as well as crimes. If that be so as regards ordinary offences, how much more is it desirable that the witness should be protected in regard to matters of a political nature, as it is now pretty well understood that this Act will apply to political offences, as well as to grave and serious crimes.
§ THE CHAIRMAN
I am not quite sure from the hon. Member's remarks whether he is addressing himself to Amendment No. 76 or 79, each, of which stands in his name?
§ Mr. P. McDONALD
I am addressing myself to No. 76. I may be answered that the witness is protected by the concluding portion of this sub-section by the fact that the defendant may not be called on to defend himself as regards any evidence that he may have given at the preliminary examination. But I consider that that is the gravest portion of our cause of complaint, inasmuch as I consider it merely as a machine for converting a witness into an informer. Therefore, Sir, I must enter my protest against the insertion of this sub-section in the Act. It is repugnant to all common sense, as well as repugnant to the Law of England, especially in view of the manner in which the Act will be administered in Ireland, and I shall, therefore, vote against its insertion in the Act.
§ Amendment proposed, in pages 1 and 2 to leave out sub-section (3).—(Mr. Peter McDonald.)
§ MR. HUNTER (Aberdeen, N.)
I am aware that the answer may be made on the part of the Government that this sub-section was substantially contained in the Act of 1882. For my own part, I would reply to any statement of that kind by saying that the Act of 1882 is no authority to me. I was not in Parliament when it was discussed, and if I had been, I should have opposed every line in it, from beginning to end. I object to this sub-section, Sir, because it is an idiotic proposal. It contains this absurd proposition, that a person examined as a witness is bound to criminate himself. Now, I should like the right hon. and learned Attorney General for Ireland, or any other hon. Gentleman on the opposite side of the House, to be good enough, when he defends this clause, to point to the laws of any civilized country in which any such proposition is contained. A great deal has been made of the Scotch Laws, and we have all felt considerably humiliated by the way in which Scotland has been dragged forward in this business, because there is nothing in the administration of the law of that country that at all justifies the 1633 proposition of the Government. Let me call the attention of the Government, as they are so enamoured of the Scotch Law, to what is the Scotch Law on this point. Allison says that it is competent for a Judge to put a witness on oath; in doing so, however, the Judge must keep in view that the person who has been put on oath in regard to any crime cannot he himself fried for its commission; consequently, if the Crown, or those acting in the public interest, have put any party on oath, it must be held that they have passed from all intention of putting him on his trial, and that the oath was taken on that implied condition; if, therefore, there is any doubt as to which of the persons in custody is to be selected for trial, which is very frequently the case in offences committed by large gangs of criminals, none of them should be put on oath except such as are certainly not the intended objects of punishment. That is the Scotch Law, it is the law of every country, and it is the law of common sense. Does the right hon. and learned Gentleman the Attorney General for Ireland imagine that any person who is examined as a witness will be such a fool as to criminate himself? Now, I will suppose the case of an inquiry into a murder, and that the police have accidentally called on one of these private inquiries the very man who committed the crime. He is examined; under this law he cannot excuse himself from answering questions on the ground that his answers may tend to criminate himself; but, of course, under these circumstances, he would answer with a bold negative from beginning to end, because, if he were committed, the utmost punishment he would get would be punishment for perjury, and that would be a doubtful and distant possibility. If he were to admit his guilt he would be hanged; and, therefore, the Government are in this absurd position—that they actually expect a person who is examined as a witness to prefer the greater punishment to the lesser, and to put his own neck in the noose by which he will be hanged. The same remark applies to all serious crimes; it applies to attempts to murder; it applies to all those crimes which are visited habitually with long terms of penal servitude; and it is only in cases of comparatively small offences that a man could not distinctly gain by per- 1634 juring himself. Now, Sir, there is another consideration. If a man gives evidence which tends to criminate himself he at once exposes himself to punishment; but if he denies the charge he has a chance of getting off, there being only a remote possibility of his being prosecuted for perjury. That is the reason why in no civilized system of jurisprudence do you find this provision requiring a man to answer questions, when they tend to criminate himself. Now, Sir, I dare say there are parents who indulge in the practice of extorting confessions from their children by beating them. Well, any man who would treat his child in that fashion would be both a brute and a fool, because the only effect of such a mode of discipline is to teach his child to be a confirmed and justifiable liar. In the same way in regard to this inquiry, no man who is summoned as a witness will criminate himself, whatever the law may be. Where is the humanity, where is the common sense, where is the justice of a provision so absurd that can have no effect at all except to do mischief? For purposes of inquiry it is utterly useless. On the face of it, it is useless, and such a provision, therefore, is one that cannot be justified by humanity, which is utterly opposed to the law of every civilized country, including the law of England, and which, if adopted as the law of this country, would be useless, except for the purpose of creating irritation and mischief.
§ THE CHIEF SECRETARY FOR IRELAND (Mr. A. J. BALFOUR) (Manchester, K.)
The hon. and learned Gentleman who has just sat down spoke in the interest of witnesses whom he thought would be injured by this provision; but he told us, in the course of his argument, that no witness would be such a fool as to give any evidence that would criminate himself, and, if that argument was worth anything at all, it went to show that this sub-section would not injure the witness. The hon. Gentleman seemed to think that because no witness would ever give any evidence criminating himself, that, therefore, this sub-section is totally useless. Has it not occurred to the hon. Gentleman that a witness may attempt to stop the whole of an examination by alleging falsely that to answer would be to criminate himself? Does he not see that a wit- 1635 ness, knowing that such a reply will at once stop the questions, will say that he declines to answer, because the answer will criminate himself? The whole object of the inquiry might be entirely foiled without this sub-section. The hon. and learned Gentleman went on to tell us that this provision was absolutely idiotic. Well, it has been copied verbatim from the work of Gentlemen whom he does not usually regard as the authors of that which is idiotic. It is the work of the right hon. Gentleman the Member for Derby (Sir William Harcourt), the right hon. Gentleman the Member for Bury (Sir Henry James), and the right hon. Gentleman the Member for Mid Lothian (Mr. W. E. Gladstone). If the hon. and learned Member will look for it, he will find a subsection in the Corrupt and Illegal Practices Prevention Act which says—A person called as a witness respecting an election, at any election court, shall not be excused from answering any question relating to any offence at or in connection with any election, on the ground that the answer thereto may tend to criminate himself.So that that provision, if it be idiotic, is one that, at all events, has been thought sufficiently sensible by successive Parliaments to be introduced into the Legislature. The arguments of the hon. Gentleman who moved the Amendment are not really relative to this Amendment, but are relative to another Amendment that stands on the Paper lower down. The second portion of the section has been introduced by us to prevent the abuse of this provision, and will be found a sufficient protection. If, however, the Amendment now before the Committee were carried, the result would be that hon. Members opposite would not only exclude the words to which they object, but would also exclude the last five lines of the sub-section, which simply afford protection to anyone from being made to suffer any ill consequences that might otherwise result from the evidence he may give. Therefore, I think that if hon. Members who support the Amendment had reserved their observations until we had got to the Amendments numbered 79 and 82, upon which their speeches would have been relevant, and had not directed them to the whole of the sub-section, a portion of which, as I have already shown, is in the interest of those who may be summoned as wit- 1636 nesses under the clause, they would have taken a more desirable and a more consistent course.
§ MR. ATHERLEY-JONES (Durham, N.W.)
The right hon. Gentleman the Chief Secretary to the Lord Lieutenant of Ireland (Mr. A. J. Balfour) has told the Committee that if the sub-section is not passed as it stands, any witness who may be called upon to attend before a Resident Magistrate, for the purposes of the intended preliminary inquiry, might stultify the whole investigation by refusing to answer such questions as might be put to him, on the fallacious ground that the answers to those questions might incriminate, or have a tendency to incriminate him. May I ask the right hon. Gentleman whether he is aware of the discretionary power which is now exercised by the Judges in reference to the questions which may be put to witnesses, and the answer to which a witness may say would have a tendency to incriminate him? According to the argument of the right hon. Gentleman it would be equally in the power of any witness in any of our Courts of Law to refuse to answer any question put to him, and successfully to refuse to do so, by merely alleging as his reason for so doing that the answer to that question would tend to incriminate himself. I would point out with regard to the Corrupt Practices Prevention Act—although that Act is an exceptional measure—the right hon. Gentleman will find, if he looks into it, that as far as that Act is concerned it does not enable proceedings of the nature proposed by this Bill to be taken against any person examined as a witness as the result of his evidence. This measure would enable a witness, as the result of his confession, to be prosecuted for murder. Now, I venture to say that I think the Amendment we are considering is a very important one, and one that well deserves to receive the consideration, and the fair consideration, of every hon. Member of this House. The subsection it proposes to omit is one which embodies a principle involving a total departure from a long recognized and valuable principle of the Criminal Law, not only of this, but of almost every other country. Let me remind the right hon. and learned Gentleman the Attorney General sitting opposite me, that the law has invariably been most tender in its dealings with witnesses, and that it 1637 was not until the Reign of George III. that any witness could, by Statute, be compelled to answer a question which might even have the effect of subjecting him to a civil action, that is to say, that the Courts have always thrown their protection around any witness who has said—"If I answer the question put to me I should be exposing myself to the risk of a civil action;" and oven, at the present time, as the right hon. and learned Attorney General is well aware, a witness cannot be asked a question the answer to which might expose him to a forfeiture. Much less can any witness be compelled to answer a question which may tend to incriminate himself. With regard to the sub-section under discussion, I do not hesitate to say that the protection the right hon. and learned Attorney General for Ireland has pointed out as afforded by one portion of the provision is, in reality, no protection at all. All it amounts to is this—that a witness shall not be prosecuted by means of the evidence which his own confession would afford. The right hon. and learned Gentleman must know that a witness may be asked all sorts of questions, the answers to which might enable the Crown to fill in all the essential links in a chain of evidence against a person whose own confession they have obtained without being compelled to resort to the confession itself when they had decided upon bringing him to trial. Let us see how it would work. Here is a man put into the witness-box, unsupported by his friends, much less by a solicitor or counsel, without the slightest protection being afforded to him, and then, under fear of the punishment he may receive for contempt if he should refuse to answer the questions put to him, he is compelled to disclose every fact and circumstance in relation to the matter being inquired into, and thus place himself in a position in which he may be prosecuted for an offence known to the law. May I venture, before Her Majesty's Government plunge headlong into all the consequences of the passing of this clause, to remind them of the language used by such eminent legal authorities as Lord Mansfield and Lord Eldon. I do not give the exact words, but those two Judges pointed out that not only ought no witness to be asked a question which might directly incriminate him, but they also laid it down that no one 1638 was entitled to ask a witness any question which might tend to incriminate him; thus not only enabling a witness to refuse to answer such questions, but positively forbidding such questions to be asked. In point of fact, they went even further than this, for Lord Mansfield said he refused to allow a witness to answer a question, although on the face of the question there was no appearance of its being likely to incriminate him, on the ground that it might afford a link in the chain of evidence which might be made to incriminate him. Lord Eldon also said a person should be protected from any question not only that had a direct tendency to incriminate him, but from any question that might operate or tend towards incrimination. On these grounds, I would respectfully submit to Her Majesty's Government that they would do well to hesitate before offering their resistance to the Amendment that has been brought forward. I say, speaking as a lawyer, that while I consider it to be the duty of Her Majesty's Government to bring forward such a measure as will secure the due administration of the law, and that the measure they are now promoting shall not be rendered totally inoperative; at the same time, they are asking this House to grant them, by means of this Bill, powers of a singularly questionable character. They are refusing to allow any adequate protection to the witnesses who may be examined under this clause; and they have also refused even to allow the shorthand notes, which will form the only record of the proceedings at these preliminary inquiries, and would be the only protection to the witnesses, to be brought forward at the trial on their behalf. I say Her Majesty's Government will do well to pause before sanctioning a course that will be a complete reversal of our present mode of criminal procedure.
§ THE CHAIRMAN
I would here point out that while the Amendment before the Committee is that which is numbered 76 upon the Paper hon. Gentlemen have been addressing their arguments in reality to Amendments Nos. 78 and 79. If the debate is to be continued in that fashion, I must call on hon. Members who have set down Amendments 77 and 78, or proceed to Amendment 79.
§ SIR GEORGE CAMPBELL (Kirkcaldy, &c.)
I desire, Sir, as far as the 1639 working of this clause is concerned, to address myself to Amendment No. 76. I am greatly in favour of a judicial examination and cross-examination of prisoners; but I think that if you are to put a witness on his oath, and compel him to give evidence in which he may say he has committed some crime, and, at the same time, provide that that admission may not to used again, it is practically impossible that such a power can be placed in the hands of the Government without inevitably leading to most objectionable results. It seems to me that there is a great distinction between what is here proposed and what takes place in Scotland at preliminary inquiries before the Procurator Fiscal, because the inquiry before that official is bound to be kept sac-ret; but there is no provision in this section that the inquiry shall be secret. If a similar provision were made here, and the inquiry was to be kept wholly secret, I could understand the theory on which the Government have proceeded, though I doubt if it is possible in practice. I cannot find, from the statement of the right hon. and learned Attorney General for Ireland, that the inquiry under this section will necessarily be secret. It may be in the power of the Resident Magistrate to exclude the public from the Court; but so far as I can see by this section that is not necessarily so. I notice that the right lion. Gentleman the late Lord Advocate (Mr. J. B. Balfour) has given Notice of an Amendment to omit this sub-section from the clause, and I am sorry he is not now present, because I think that anything he might say upon this subject would be received by the Committee as having much weight and authority. At any rate, the fact that the right hon. Gentleman has put down an Amendment to omit this subsection is sufficient to strengthen my belief that it would not be found to be a workable provision. I do, therefore, hope Her Majesty's Government will seriously consider whether it would not better for them at least to omit the first part of this sub-section.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. HOLMES) (Dublin University
I would point out to the Committee that by the second part of the sub-section it is provided that anything a witness may state at a preliminary inquiry before the Resident Magistrate cannot be given in evidence against him 1640 on any subsequent proceeding, except on a charge of perjury. I take it that this is a substantial protection to those persons who maybe so examined. In the Bill of 1882, it will be remembered that a corresponding clause to that which we are now debating was introduced by the then Government, but without the safeguard which we have provided by means of the latter part of this sub-section. At that time hon. Members in various parts of the House called the attention of those who had charge of the Bill to the fact that under that clause a poor man and an ignorant man who might be called upon to give evidence, might be entirely damnified, and made to say unwillingly, under cross-examination, a great deal that would tend to incriminate himself without his knowing it, or having the slightest idea that he was subjecting himself to a possible prosecution for crime. But, Sir, in this Bill, we have provided a remedy for such a state of things, and it was to relieve a witness from the danger thus pointed out that the latter part of this sub-section was drafted. Why is it, I would ask, that the English Law enables a man to decline to answer questions of an incriminatory character? The reason is that the evidence he might otherwise give could be used against him, and he might consequently be convicted out of his own mouth. This seems to be the foundation for the English rule of law with regard to evidence to which the hon. and learned Gentleman opposite has called attention. In this sub-section, however, we have introduced a Proviso declaring that no answer a witness may make can ever be used as evidence against him, except on a charge of perjury; and, therefore, we say we afford him every reasonable protection.
§ MR. CHANCE (Kilkenny, S.)
The first part of the sub-section we are now discussing will have the effect of compelling a man, for the first time in the history of the English Law, to incriminate himself, and the second part of the sub-section goes on to say that the statements he may make shall not be used as evidence against him. The first provision, we are all agreed, is a most serious one; and this is the first time such a proposal has ever been brought before the House of Commons. As to the second part of the sub-section, which provides that the statements of a witness at a preliminary 1641 inquiry shall not be used against him, that, I contend, is completely illusory; because, what would happen would be this—A man would come up to be cross-examined; he would be compelled to reveal the names of all those who might afterwards be called as witnesses against him, and generally to put into the hands of the Government officials a complete brief for his own prosecution, his only protection being that his own words shall not be used against him. Now, I would ask the Committee to remember how this subject was dealt with in a Bill brought in by the right hon. and learned Member for Bury (Sir Henry James), who is now a supporter of Her Majesty's Government—the Bill I refer to having been passed into law in 1883. There it was enacted that a witness might, under certain circumstances, be compelled to answer questions incriminating or tending to incriminate him, and the Act did not say that his statements were not to be used against him; but when they wanted honestly to give the witness protection, they gave it to him in very different words from those now employed. They provided that the witness who answered truly all questions put to him, should be entitled to receive a certificate of indemnity under the band of the Court. Now, that is a substantial provision, and very different from the present proposal, because the witness got an absolute indemnity in consideration of his having truthfully disclosed to the Court even his own criminality. It may be said that this applied only to election offences; but the answer to that statement is this—If a person has committed a serious crime, in all probability the Government know something about it, and they need not call him as a witness, but can seek for evidence elsewhere. I hope the Committee will not allow a sub-section to pass which puts a witness under a very serious disadvantage, and gives him no effectual protection whatsoever. It may, however, be deemed an advantage to pass it. and, in doing so, they will doubtless have the very valuable assistance of the right hon. and learned Member for Bury.
§ MR. MAURRICE HEALY (Cork)
Hon. Members who may follow Her Majesty's Government into the Division Lobby on this question will find that they will not, by the course they are 1642 taking with regard to this Bill, long be assisting the Government to occupy the positions they now hold on the Treasury Bench. The arguments used by the Government in support of this sub-section have been blown to pieces by subsequent speakers. The right hon. Gentleman the Chief Secretary stated at one time that if a witness under this clause had the power to refuse to answer a question, on the ground that it might tend to incriminate himself, any witness would have the power to put a stop to the whole proceeding by raising that excuse for refusing to answer any question that might be put to him. But, as hon. Members have since pointed out, this is a thing which might occur on any judicial proceeding; and yet although. Law Courts have been established in this country for 700 years, I am not aware of any serious mishap to English, jurisprudence owing to the fact that this principle has been maintained. If this be so, I venture to think that this contemplated Star Chamber inquiry by the Resident Magistrates would have an equally long life if the sub-section we are now opposing were omitted. That was the first argument. The second argument was founded on the Corrupt Practices Act, to which I will not refer further, my hon. Friend the Member for South Kilkenny (Mr. Chance) having shown how disingenious that argument was. In taking up the position we occupy upon this Amendment, we are fighting for one of the oldest principles of English jurisprudence. It is a principle which has existed in these countries as long as the Courts of Justice have existed. It is a principle which has been laid down and defended by the whole of the English Judges, and it is laid down in law-books that so consonant was this principle with reason, so much did it commend itself to good sense and reason, that even the notorious Judge Jeffries upheld it in several cases which came before him, refusing to allow it to be departed from, when he was trampling on a great many other principles at the bidding of his Lord. What is the reason the Government endeavour to support the position they take up? Let me call the attention of the Committee to the position in which we stand in this matter. The Government have already accepted an Amendment of my hon. Friend the Member for 1643 South Kilkenny, declaring that at these inquiries, no person who admits himself to be the perpretator of a crime shall be examined further, but they now maintain that though a man who admits himself the author of a crime shall not be further questioned, they wish to retain the power of compelling him to admit he is the author of the crime. On what principle of logic can that be justified? If it is a reasonable thing that a man who admits himself the author of a crime should not be further pressed on points of detail connected with the crime, is it not equally reasonable and just that he shall be protected from any questions at all which would incriminate himself? How can right hon. Gentlemen opposite logically defend the position they take up on this Amendment. Now, Sir, let me call attention to another consideration. The right hon. Gentleman the Chief Secretary for Ireland (Mr. A. J. Balfour), in his usual jaunty manner, states that whoever is damnified by this Proviso being included in the Bill, the man who admits his guilt cannot be damnified, because the section goes on to provide that his admission shall not afterwards be used in evidence against him. What is the good of the admission if it cannot be used in evidence against him? If you start upon the principle that a man's admission, that he is the perpetrator of a crime, shall not be used against him, and, then, say that once a man makes such an admission, he shall not be further pressed upon points of detail, what is the use of keeping in the Bill a provision that a man may be asked questions which incriminate himself. I could quite understand the adoption by the Government of the broad and naked principle, that a man should be questioned, and that his statement should be used in evidence against him. A great many reasons might be urged in favour of such a provision; but I cannot understand the logic of the present position of the Government. You have I think, struck away all foundation for the admission of this clause in the Bill; because you have utterly deprived it of any use. But Sir, the facts are not exactly as the right hon. Gentleman stated. He said a man could not suffer, if he were examined under this clause and made certain admissions. Yes; he could the clause goes on to provide that a man may 1644 be prosecuted for perjury, if he is guilty of it, at these inquiries. It does appear to me that the sole effect of admitting this sub-section into the clause will be that these secret inquiries will simply be machinery for creating and perpetuating perjury in Ireland; because it is preposterous, as my hon. Friends have said, to expect that a man who has committed a grave crime will come up at one of these inquiries and make admissions, which will afterwards have the effect of convicting him. It is hopeless to expect that such a state of things will arise. We know perfectly well that a man who is guilty, will in the most bare-faced way deny any connection with the offence, and that, therefore the effect of this clause will be to produce unusual and indiscriminate perjury amongst the class at whom the law should strike— namely, the perpetrators of offences.
§ MR. JAMES STUART (Shoreditch, Hoxton)
Mr. Courtney; this sub-section is the most serious innovation of the Criminal Law which exists in the Bill. The Act of 1882 was a temporary measure; but this is intended to be permanent. You are introducing an absolutely new principle into the Criminal Code for Ireland, and that is a most important point. It is not for a specific or immediate purpose, that this serious innovation is being introduced in the law. the Attorney General for Ireland (Mr. Holmes) wishes us to believe that this provision is for the protection of liberties. That is a most extraordinary argument, and surely must have been used sarcastically. In this case a witness is to be compelled to answer, and we are to suppose his evidence cannot be used against him. I submit that that is a technical way of looking at the law. The object of the law does not seem to me to be merely to hinder the words of an accused person being brought in evidence against him at a trial, but to be this—that you are to prevent the authorities obtaining evidence against a man through compelling him to answer questions concerning his guilt. It is not a question whether you use the evidence, but whether you get a clue to that particular evidence. There is another point I wish to urge upon the attention of the Committee, and it is an important one; because under this clause you can say to a witness—" Are you guilty; did you do this?" and if he 1645 says "No," and afterwards it is proved that he is guilty, he can be punished in addition for perjury. That is a great power to hold over a witness, to make him state what may incriminate himself. You have therefore got a screw to put on a witness. On these grounds I shall certainly support the Amendment, and I cannot conclude without saying how remarkable it does seem to me that these great innovations should be introduced into the Constitution of this country by Gentlemen on the other side of the House.
§ THE FIRST LORD OF THE TREASURY (Mr. W. H. SMITH) (Strand, Westminster)
I venture to appeal most earnestly to hon. Gentlemen to conclude this particular debate. It will be in the knowledge of hon. Gentlemen below the Gangway opposite, and hon. Gentlemen above the Gangway opposite, that the arguments we have heard upon this Amendment are arguments that have been repeatedly used over and over again against this sub-section. I quite admit that hon. Gentlemen are within their right in opposing this sub-section; but I think that out of regard to the conduct of the Business in this House, it is necessary we should come to a decision upon this sub-section. The question involved has been argued at great length during the last four or five days, and I make this appeal in the hope that the Committee will listen to it, and allow a Division to be now taken.
§ MR. J. E. ELLIS (Nottingham, Rushcliffe)
I rise to protest against the action of the right hon. Gentleman, and I wish to protest against it in the strongest manner consistent with courtesy. The right hon. Gentleman has absented himself, for reasons best known to himself, during the best part of the afternoon; and he then comes in from behind the Chair for a moment or two, and says the arguments have been repeated at great length. I have been sitting here for some time, and I can tell the right hon. Gentleman to his face that the arguments have not be on repeated; and I say that the dignity of this Assembly is lowered by the right hon. Gentleman, occupying the position he does, using the language he does to hon. Gentlemen who sit on this side of the House. We are sent here by our constituents to perform a duty, and that duty we shall perform. The right hon. Gen- 1646 tleman represents in this House the shopkeepers of the Strand; but he has no right to use the language of menace that he constantly does to Members on this side of the House, and I venture to say he will not improve the chance of this Bill making progress unless he very much alters his style.
§ MR. HOLMES
I have been in attendance during the entire course of the debate. The hon. Member had unquestionably hoard a great many of the arguments used in reference to this clause, used again and again. ["No!"] I doubt very much if the hon. Member has been in the House one third of the time I have.
§ MR. HOLMES
I am speaking of the last five days. The point to which I wish to call the attention of the Committee is, that the observations made by hon. Gentlemen opposite may be very pertinent indeed to several Amendments on the Paper, but they seem to me to be in no way pertinent to the Amendment which is now before the Committee, which deals with the clause as a whole. I think we might now be allowed to go to a Division.
§ MR. W. H. SMITH
I rise to move that the words down to "shall," in line 24, stand part of the clause.
§ Question proposed, "That the Question that the words 'A witness examined under this section shall' stand part of the Clause be now put."-—(Mr. W. H. Smith.)
§ MR. T. P. O'CONNOR
As a point of Order, Mr. Courtney, may I ask if you have put the Question in the terms handed to the Chair?
§ Question put.
§ MR. ANDERSON (Elgin and Nairn)
(speaking sitting, with head covered): May I ask whether this proposal will exclude my Amendment No. 78a?
§ THE ATTORNEY GENERAL (Sir RICHARD WEBSTER) (Isle of Wight)
It has been already decided in your absence.
§ THE CHAIRMAN
The Amendment 78a could not have been moved in any case; but the Amendments 79 and 80, 1647 which are really Amendments which have been discussed for the last hour, can still be taken.
§ The Committee divided;—Ayes 265; Noes 162: Majority 103. —(Div. List, No. 133.)
§ Question put, "That the words 'A witness examined under this section shall' stand part of the Clause."
§ The Committee divided:—Ayes 267; Noes 167: Majority 100.—(Div. List, No. 134.)
§ MR. P. MCDONALD (Sligo)
I beg to move to leave out the word "not" in line 24. Notwithstanding the result of the Division which has just been taken, I claim that it is contrary to the English idea of justice, and the English idea of the just administration of the law, that a witness should be obliged to give evidence that may criminate himself. Why apply to Ireland a provision which the English sense of honour and justice would not permit for a single day? Therefore it is I beg to move the omission of the word "not" from this sub-section.
§ Amendment proposed, in page 1, line 24, leave out the word "not."—(Mr. P. McDonald.)
§ Question proposed, "That the word 'not' stand part of the Clause."
§ THE CHIEF SECRETARY FOR IRELAND (Mr. A. J. BALFOUR) (Manchester, E.)
The whole question of how far a witness should be obliged to give evidence tending to criminate himself was discussed on the question whether this sub-section should stand part of the Bill. The question has been fully debated, and I trust the Committee should come to a decision upon it. In any case, the Government feel they have nothing to add to the statement they have already made.
§ MR. T. P. O'CONNOR (Liverpool, Scotland)
I will just show the Committee how the question was discussed. I do not like interrupting opponents when speaking; but I do regret I did not interrupt the right hon. Gentleman (Mr. A. J. Balfour) when he was making his previous speech, because he said the proposal contained in this sub-section 1648 was exactly the same as one contained in several Acts of Parliament already in force. The right hon. Gentleman, by way of proving that statement—that grossly inaccurate statement—professed to read a section of the Corrupt Practices Prevention Act, 1883. I thought of asking the right hon. Gentleman not to stop reading at the point he did stop; but my memory, which was possibly a little blurred by what had happened, did not serve me at the moment. I did not think the right hon. Gentleman would have been—I was about to use an un-Parliamentary expression, but I will say I thought he would have been ingenuous, and frank, and honest enough to tell the Committee the whole meaning of the clause, and not leave upon the Committee a false impression. What did the right hon. Gentleman do? He only read two or three lines of the clause, in order to establish the proposition that, under existing laws, a man was bound to criminate himself. Why, Sir, if he had read the concluding portions of the clause, he would have been able to show to the Committee the very opposite to the proposition he was trying to lay down. He would have been able to show that, under the law which he quoted, a man was safeguarded in the most cautious manner from the very thing he is obliged to do under this Act—namely, criminate himself. The right hon. Gentleman read the following portion of the 59th section of the Corrupt Practices Prevention Act: —A person who is called as a witness respecting an election before any election court shall not be excused from answering any question relating to any offence at or connected with such election, on the ground that the answer thereto may criminate or tend to criminate himself, or on the ground of privilege.Why was the right hon. Gentleman not honest enough to read the rest of the section? What are the other words?Provided that (a) the witness who answers truly all questions which he is required by the election court to answer shall be entitled to re-ceivo a certificate of indemnity under the hand of a member of the court, stating that such witness has so answered; and (b) an answer by a person to a question put by or before any election court shall not, except in the case of any criminal proceedings for perjury in respect of such evidence, be in any proceeding, civil or criminal, admissible in the evidence against him.Not only is the witness who gives evi- 1649 dence under this clause saved from being prosecuted afterwards, but he is actually guaranteed his expenses, in case any prosecution is brought against him. Subsection 2 of the 59th clause of the Act says—Where a person has received such a certificate of indemnity in relation to an election, and any legal proceeding is at any time instituted against him for any offence under the Corrupt Practices Prevention Acts, or this Act committed by him previously to the date of the certificate at or in relation to the said election, the court having cognizance of the case shall on proof of the certificate"—Now mark these words—stay the proceeding, and may in their discretion award to the said person such costs as he may have been put to in the proceedingIt is in this state of things that the right hon. Gentleman the First Lord of the Treasury (Mr. W. H. Smith), without heating the arguments, says the question has been sufficiently discussed. I must say that I never, in all my seven years' experience of this House, heard a Gentleman occupying so important a position as that of Chief Secretary for Ireland make so unfair and uncandid a use of a section in the Act as the right hon. Gentleman (Mr. A. J. Balfour) has done to-day. I do not know whether we are to be treated to another sudden incursion of the First Lord of the Treasury, who, in spite of the reproof you found it necessary to administer to him a night or two ago, seems determined to revolutionize by force the jurisprudence of the last seven centuries; but, nevertheless, I intend to stubbornly resist as long as I can this proposal, and make manifest to the country its real character and purpose.
§ MR. O'DOHERTY (Donegal, N.)
Upon the proposition to leave out the word "not," I do not intend to weary the Committee by any long dissertation upon the history of this Bill, or upon its effect upon the British Constitution Several times the Attorney General for Ireland has said that the statement a witness may make cannot be used against him; but he never emphasized the proposed words, "used in evidence against him."
§ It being a quarter of an hour before Six of the clock, the Chairman left the Chair to report Progress; Committee to sit again upon Friday.
§ House adjourned at one minute to Six o'clock.