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Motion For A Return

Volume 202: debated on Tuesday 5 July 1870

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, who had given Notice to call the attention of the House to Petitions containing grave charges of misconduct against certain Commissioners appointed to inquire into the existence of Corrupt Practices at Elections; also to Affidavits filed in the Court of Queen's Bench, in the matters of "The Queen v. Fenelly;" and "The Queen v. Hardiment;" said, on account of the lateness of the hour (20 minutes to 1 o'clock), he would confine himself to the second part of the subject. Shortly after the appointment of the Royal Commission, Mr. Fenelly received a summons, ordering him to hold himself in readiness on a certain day to attend at Bridgwater, and give evidence before the Commissioners. After he had received that notice, a visit was paid him by a Mr. Purcell, with whom he was slightly acquainted, and who said he called on him in his capacity of secretary to the Bridgwater Commissioners. He further informed him that he would be one of the first witnesses examined by the Commissioners, and he wished him to state to him (Mr. Purcell) all the facts he knew of connected with the election. He advised him to tell him all—no matter who might be implicated—stating that, if he did not do so, he would be refused his certificate by the Commissioners. Mr. Fenelly gave him all the information he required. Now, either Mr. Purcell had called on Mr. Fenelly as secretary to the Commissioners, or he was conducting a fishing inquiry, which was in no way included in the terms of the statute. After the lapse of a few weeks, Mr. Fenelly wrote to the secretary of the Commissioners, requesting to know when his evidence would be required. The answer he received was not written by Mr. Purcell, but by a gentleman who was acting as secretary during Mr. Purcell's temporary absence. It informed Mr. Fenelly that he would be required on and after a certain day in August. Mr. Fenelly proceeded to Bridgwater, and attended the Court of Commissioners for 14 days; he was not examined, but he was refused his certificate. In the Court of Queen's Bench an affidavit was filed by two of the Commissioners. They stated that they had never, in any manner, either expressed or implied, authorized Mr. Purcell to give any pledge or assurance, or to convey any impression or understanding to Mr. Fenelly that he would be examined. They further said that Mr. Purcell had never communicated or suggested to them that he had given any pledge to that effect to Mr. Fenelly, and that he had never given them to understand that Mr. Fenelly would consider himself hardly dealt with if he were not examined. Now, it must be remarked that the Commissioners carefully abstain from asserting that Mr. Purcell was not authorized by them to conduct preliminary examinations of probable witnesses, nor do they deny that they were well aware that Mr. Fenelly had been so examined by their secretary. He (Mr. Lowther) would next refer to a letter written by Mr. Purcell the secretary to the Commission in reply to a communication from Mr. Fenelly's solicitor. The secretary in that letter stated that the Commissioners were made fully acquainted by him with his call upon Mr. Fenelly, and also with the facts disclosed to him by that gentleman; and he added that his visit to Mr. Fenelly was not an exceptional one; that he had called upon nearly every person likely to be able to give important information (except the candidates) whose names had been ascertained by the Commissioners; that he had received no intimation that Mr. Fenelly would be marked out for prosecution; and he also adverted to the fact that Mr. Fenelly had given really valuable and willing assistance to the Commission, by opening up the clue to the whole corrupt organization of the borough. Then there was a letter written by Mr. Tracey Gould, the acting secretary to the Commissioners during Mr. Purcell's temporary absence, stating that he had summoned Mr. Fenelly by order of the Commissioners, and certainly understood that his examination was a mere question of time and convenience; that Mr. Fenelly had been communicated with throughout, on the assumption that he was to be examined, and that he had stated the general purport of the evidence which he was to give. Those two letters were, he thought, a complete refutation of the affidavit of the Commissioners. He did not wish to cast any doubt on the bona fides or veracity of the Commissioners. He had had a personal acquaintance for many years with the senior Commissioner, and was sure that gentleman would not put his name to anything which he did not believe to be thoroughly correct. But there were extenuating circumstances of no ordinary character to be urged in favour of those two Commissioners. Their ears had been so filled for months with the language of condemnation pronounced upon them, not only by the Press, but in other quarters, that many matters of detail might easily have been driven out of their heads. Mr. Purcell had offered to make an affidavit embodying the substance of his letter, and that affidavit had been prepared, but Mr. Purcell thought it necessary to communicate with the Commissioners before signing it, and the result of that communication was that the affidavit was still unsigned. He understood a counter affidavit had been prepared in the official Department of the Solicitor to the Treasury, and sent to Mr. Purcell for signature—that counter affidavit being confirmatory of the affidavit of the Commissioners—but Mr. Purcell refused to sign it, because it was not in accordance with the truth. In addition to that, the jury who tried the case, who recommended Mr. Fenelly to mercy, followed up that recommendation by an unanimous memorial on his behalf, which was forwarded to the Crown. Probably he should be told that memorials of that kind were usually sent to the Judge who tried the case, and perhaps that course had been taken in this instance. If that were so, it was very nearly a waste of time, because the matter was not one to be referred to the Judge, for the circumstances of that case were not put forward as reasons why the verdict should not have been found, or the sentence passed, but as reasons why the clemency of the Crown ought to be exercised. The Lord Chief Justice, in passing sentence, said there were circumstances in the case which might entitle the prisoner to a pardon from the Crown. He (Mr. J. Lowther) was not calling in question the finding of the jury or the sentence of the Court, but merely adopting the course indicated by the Court who tried the case. The case of Mr. Hardiment was, he believed, in many respects analogous to that of Mr. Fenelly. But the question involved in both had a most important bearing on the liberty of the subject in this country. One of the oldest maxims of the English law was that no man could be convicted out of his own mouth; and a police constable was not allowed to put the simplest interrogation to a common pickpocket without distinctly cautioning him that he was not bound to give an answer to any question which might be brought against him in evidence. However, in order to meet corrupt practices pursued at elections, an Act was passed a few years ago enabling Commissioners of Inquiry to get statements from witnesses which might criminate them. But an important clause was inserted in the Act—and one without which the Act would never have received a second reading from either House of Parliament—rendering it imperative on the Commissioners to give a certificate of indemnity to any witness who answered truthfully all the questions tending to criminate him; and the Court of Queen's Bench had not hesitated to grant a mandamus to compel the application of that clause. Now, how had this provision been acted upon in the cases in point. The Commissioners sent their secretary to persons eligible to be called before them as witnesses, held out to those persons threats that unless they stated all they knew to the secretary it might be worse for them, and under those threats the witnesses made certain statements. That he took to be a constructive examination of a witness by the Commissioners through the secretary. And the Commissioners, having obtained evidence in that way, availed themselves fully of it—as in the case of Mr. Fenelly—to examine other witnesses from the notes taken in writing by Mr. Purcell during his interview with Mr. Fenelly, and then they turned round and said they had got all they wanted, that they would not call Mr. Fenelly, or give him a certificate of indemnity, but would hand him over to be dealt with by the Attorney General. Was that carrying out the letter, not to say the spirit, of the statute? He maintained that it was a gross violation of the law of the land. Were the Commissioners entitled to send a person in their name to obtain information by means of threats, and when they had obtained it to turn round and say—"We have got out of you all that is necessary, we will set the statute under which we have been appointed at defiance, and the spirit of the law at nought, and we will hand you over to be prosecuted by the Attorney General?" That was a case which showed that the law was liable to abuse in a way that Parliament had never contemplated. He begged to move for the Return.

, who apologized for addressing the House at so late an hour (1 o'clock), said, that the conduct of the Norwich Commissioners had excited the gravest discontent in that city. It was rather extraordinary, in the first place, that the Commissioners, instead of beginning where Baron Martin had left off—that learned Judge having discovered all the bribery, though not the sources from which it had proceeded—should have begun de novo, should have examined 1,500 witnesses, have sat for 33 days, asked nearly 45,000 questions, and put the the city to enormous expense. And what was the whole foundation of the Commission? Why, the story of a small boy that £1,000 had been sent down by the Carlton Club to bribe the electors of Norwich; and as soon as the origin of the story was discovered the inquiry collapsed. It was a mistake to suppose that every one who voted after 2 o'clock was of necessity bribed, or that every one who was a zealous partizan was employed in corrupting others. He (Mr. C. S. Read) happened to go twice into the Court while the inquiry of the Commission was being conducted, and he was struck by the peculiar and difficult position in which the three learned Commissioners were placed, being judge, jury, and prosecuting counsel at once. He was not ashamed to confess he thought that sort of Court a real disgrace, and more like an inquisition than a British Court of Justice. He happened to go in at the end of one day's inquiry, and there he found a man who had been in the dock since the early morning. One of the Commissioners told the man to stand up, and then said, in substance—"I will give you one more chance. If you don't confess that So-and-so gave you 5s. I will send you to prison for six months." Of course the man confessed; and he (Mr. C. S. Read) confessed if he had been in the man's position, though innocent, he would have been sorely tempted to do the same. Another day he saw a highly nervous witness going through all the mental torture it was possible to inflict on him, the three Commissioners asking Mm a variety of questions as to what happened on some day 12 months before—whether a certain person had not nodded and winked and looked in a jocose manner at him—things which might have been done to anybody yesterday and quite forgotten. He had presented a Petition to that House, signed by 1,269 electors, inhabitants of Norwich, almost all the first signatures being those of magistrates, and in it was this allegation, that—

"The conduct of two of the Commissioners was violent and unjudicial in its character, and totally opposed to the proceedings of English Courts of Justice."
No doubt the short-hand writers had taken down all that had occurred, but it was a strange thing that such expressions as these by the Commissioners did not appear in the Minutes of Evidence—"I don't believe a word you say." "There is not a syllable of truth in all you utter." "You have told lies." These things were constantly occurring, and for all he knew they might have been quite true; but at the same time, they ought to have appeared on the Minutes of the Evidence. But coming to special cases—Mr. Woodrow, a land agent, was called a buffoon; Mr. Chittock, a solicitor, was told by the Chief Commissioner that he was ashamed of the profession to which he belonged; a witness named Fuller was told he had committed perjury; and another named Townsend was told that he was a sorry scoundrel. Now all these things are omitted from the Report. Then, coming to the case of the Rev. Mr. Dombrain, one of the most hard working and respected of the parochial clergy of Norwich. The Chief Commissioner lectured him for daring to go into a newspaper office to see the state of the poll, and said it would have been more in accordance with his Christian profession to have been ministering to the wants of his flock. So much did he appear to have been insulted by the Commissioners in the eyes of the citizens of Norwich, that they presented him with an address of condolence. From the Preliminary Report sent to the Attorney General four persons were selected for prosecution, of whom two were acquitted. The Commissioners gave Hunt and Smith certificates, but delayed to do so to Hulme until after the Lord Chief Justice's remarks in the Queen's Bench. Then he got a sort of qualified certi- ficate, which when he was convicted, the Judge took into account, and he was not imprisoned, but only condemned to a fine of £100. The case of Hardiment was very similar to the case of Mr. Fenelly. The secretary to the Commissioners came down, and advertised in the newspapers for evidence for which a certificate would be given. He was not sure whether Hardiment went to the secretary or the secretary to Hardiment; but, at all events, after the secretary got all the information he required from him, Hardiment, though he attended at the Court day after day, was never called, and at last he was handed over to the Attorney General for prosecution, and sentenced to six months' imprisonment. By the Bills which had just received the Royal Assent they had given judicial sentences against those scheduled men without affording them an opportunity of being heard, and had passed upon them statutory disqualifications for life. He would humbly ask the House to take into consideration the case of Mr. Hardiment, and would second the Motion.

Motion made, and Question proposed,

"That there be laid before this House, a Return of all expenses incurred by the Royal Commissions severally appointed during the year 1869 to inquire into the existence of Corrupt Practices at Elections in the City of Norwich, and the Boroughs of Beverley and Bridgwater."—(Mr. James Lowther.)

MR. GREENE moved that the debate be now adjourned.

, in seconding the Motion, said, he thought it very hard that Mr. Fenelly should have been sentenced to 12 months' imprisonment when those by whom his acts were instigated were allowed to go free. He (Mr. Neville-Grenville) would suggest, as a means of raising the character of the Bribery Courts, that the Commissioners should in future wear their legal habiliments. He trusted that some remedy would be afforded to individuals who had suffered from the conduct of the Commissioners, and that the whole system would be revised.

said, he would not oppose the adjournment, but he could not allow some of the statements made to pass unchallenged. He maintained, in opposition to the Gentleman who had brought forward this Motion (Mr. J. Lowther), that the con- duct of the Commissioners, far from having been censured in Courts of Justice, and condemned by the Press and public opinion, had been generally approved, and that they had done great service to the country. They had conducted their inquiries with great ability and zeal, and the information they had afforded the House had been of the most valuable kind. He did not pretend to say that in every individual instance what had been done was not open to observation; but, so far from the conduct of the Commissioners having been censured in Courts of Justice, the only case in which any disapproval had been expressed was in the case of the examination of Mr. Lovibond, one of the most corrupt of the electors of Bridgwater, the most corrupt borough in the kingdom. In that case, the Court before whom the matter came had simply said that the examination was somewhat too severe; but there was no pretence for saying that anything of that kind ever had been alleged in the case of Norwich and Beverley. He denied that Mr. Hardiment had given the Commissioners any information whatever, and though the same could not be said of Mr. Fenelly, yet what Mr. Fenelly did disclose was entirely in his own favour, while he carefully concealed the evidence upon which he was subsequently convicted. The statement of Mr. Purcell had been denied by the Commissioners, who contradicted it in almost every particular.

said, he thought that the case of Mr. Fenelly was one in which the clemency of the Crown might be reasonably exercised.

said, that there was nothing whatever in the Motion of his hon. Friend (Mr. J. Lowther) which could lead him to suppose it involved any question as to the exercise of the prerogative of mercy. With respect, however, to what had fallen from his hon. Friend the Member for Cork (Mr. Maguire), he might state that, with reference to the facts brought forward at the trial, the circumstances disclosed in the memorial, and the opinion of Mr. Justice Hannen, he saw no reason to be dissatisfied with the verdict. There were other circumstances which it was also his duty to consider; but those did not induce him to alter his opinion that the sentence ought not to be interfered with.

Debate adjourned till Tuesday next.