§ Order of the Day for the House to be put into Committee, and for James Thomas Russell to attend, read: Counsel, and the said James Thomas Russell, were called in: The evidence given by the said James Thomas Russell on Friday last, was read to him by the Clerk at the Table: Witness further examined—
The Earl of Radnor
said, that on Friday he refrained, with reluctance, from interrupting the examination of his noble and learned Friend. Knowing the great legal abilities of his noble and learned Friend, and hearing it stated that the Lord Chief Justice of England was of opinion that the witness was bound to answer the question, he (the Earl of Radnor) was unwilling to state any reasons why in his opinion the House should not require the witness to answer the question; but the more he considered the matter after he left the House, the stronger the reasons appeared to him why they ought not, in justice or in law, to call on the witness to answer the question, or to commit him if he refused to answer it. Their Lordships would be pleased to consider the situation in which this witness stood, and the circumstances under which he appeared at the Bar of the House. A Bill had been introduced, brought up from the other House, extending for twelve months a Bill brought in and passed early in the Session, for discontinuing certain qui tam actions, brought on account of horse-racing. That Bill discontinued these actions for twelve months, and the object of the present Bill was to further discontinue them until the end of the next Session of Parliament. On the second reading of that Bill his noble and learned Friend (Lord Campbell) presented a petition from a person signing 1146 himself Charles Henry Russell, stating that he was interested in opposing the Bill, and praying that he might be heard by Counsel at the Bar against its passing. That petition was presented after the second reading, but previously to going into Committee, and the prayer of the petitioner to hear Counsel against the Bill was agreed to. After the Counsel had been heard, his noble and learned Friend on the Woolsack stated that it ought to be shown that the petitioner was interested in the case, and the Counsel was desired, by producing the writs, to prove that the petitioner was interested in the case. This he (the Earl of Radnor) thought was a little late in the day, particularly after Counsel had been heard. However, the omission having been made in the first instance, it appeared to him only fair, that the matter should be set right. The Counsel said, that he was not aware that he should be called upon to prove that fact by evidence—the production of the writ he had apprehended would have been sufficient evidence—but he produced not the writ but the attorney, the person employed to bring these qui tam actions, to prove the fact required. The witness just now at the Bar was that attorney, and he told their Lordships that his brother was the plaintiff in these qui tam actions—that that brother of his, being his clerk, was aided in carrying on these actions by a person who wished to have his name concealed, and that was the name for refusing to divulge which the witness was threatened with commitment. An order was made on Friday, directing that the evidence should be printed, and likewise certain evidence which had been given before a Committee of that House, sitting on the subject of the Gaming Laws, and which had been circulated amongst their Lordships. He (the Earl of Radnor) understood at the time, that the reason for publishing that evidence was to prove that this witness had contradicted himself in the evidence which he had given before the Committee, and in the evidence which he had given before the House. He (the Earl of Radnor) had carefully gone through that evidence, and he did not believe that there was any such contradiction; but even if there were, he must submit that there was no cause for committing him. But in this evidence he found that this man gave a very fair account of the transaction. He did not mean to say that the character of the persons concerned was a fair character; but this man gave a very 1147 fair account of the transaction. He said that a person came to him whom he knew not, who wished to put an end to the practice of those great and ruinous bets upon the turf, which were so common, and he asked him whether he could not do so, by bringing qui tam actions? The witness said that at that time he did not know that person; but that, in consequence of the application thus made to him by this person, whether gentleman or non-gentleman he (the Earl of Radnor) did not know, he instructed him to take the opinion of Mr. Erle, and Mr. Erle's opinion was favourable to proceeding by qui tam actions. This he communicated to this person, who was still unknown to him, who said that he did not wish to appear in the transaction, and that he wished that the witness, the attorney, would point out a person who would act as plaintiff in the transaction. He (the Earl of Radnor) had never had anything to do with qui tam actions, and he must say that this appeared to him to be a fair and natural proceeding. Here was a person, gentleman or no gentleman, and he thought that it was quite consistent with the most respectable character that a man could have, that he should wish to put an end to these gaming transactions, which were notoriously taking place in consequence of horse-racing, and he could conceive that however respectable he might be, he might not like to be handed up and his name put forth as the promoter of these qui tam actions, especially as a very large portion of the penalties would go into his own pocket. He (the Earl of Radnor) could not help thinking that the transaction on the face of it was perfectly fair, and that the gentleman, whose name they had been endeavouring to get at, had acted justifiably in employing an attorney to put an end to such transactions, and in directing that attorney to employ a person to be the plaintiff in these actions. From the evidence given by this witness, his brother, Charles Henry Russell, the petitioner, was, to all intents, his client; and he told their Lordships in his petition, that he was aided in this business by money advanced to him by other parties. There appeared to be nothing improper as far as this went, and he (the Earl of Radnor) could not understand, for the life of him, what right the House had to call for this person's name. He likewise learnt, from the printed Report of the evidence taken before the Select Committee, that great anxiety had been shown there to fish out 1148 this person's name, and for this particular purpose (which was one to which he thought their Lordships would not lend themselves), that if the Earl of Eglintoun, a Member of their Lordships' House, against whom one of these actions was pending, should not be cast in the action, he might find out who were the parties against whom he might recover whatever he might by law have a right to recover, in consequence of the proceedings which had been taken against him. He thought that their Lordships would not lend themselves to aiding such an object, as they had this witness before them for a totally distinct object. This witness was threatened with being committed. He (the Earl of Radnor) knew that the House had power to commit him, and that if he were unjustly committed he would have no remedy. Every Court had an undoubted right to commit for contempt. But had this man been guilty of any contempt of this Court? He spoke under correction; but he believed that mere want of respect—or refusing to answer what was desired—did not amount to contempt; he believed that it must be something which impeded the proceedings of the Court. In the case of Mr. O'Driscoll, which was before the House a few nights ago, the noble and learned Lord on the Woolsack argued that Mr. O'Driscoll did perfectly right to commit the man Dineen, he being a witness before him (Mr. O'Driscoll), and being able to give evidence upon the subject of inquiry, but refusing to do so, and was, therefore, guilty of contempt. But this man's contempt was nothing of the sort. What did they want to know in the present instance? They wished to know, whether Charles Henry Russell was interested, and this witness came before them and said, Charles Henry Russell was his brother, that he was the plaintiff in these actions, but that he was aided by some one. It therefore appeared to him, that they had no right to fish out anything further from this man, or to cross-examine him any further as to this particular point, There seemed to be no use in doing it, as it would not facilitate any proceeding, and as it had no connexion with anything which they had to do. On these grounds he therefore objected to the question being put by his noble and learned Friend.
said, he regretted that his noble Friend had given so little of his excellent understanding to the particular question which he had put to the witness. 1149 In the first place, the speech which his noble Friend had just delivered ought to have been reserved for a future stage of the proceedings, when he (Lord Brougham) or any other noble Lord was proceeding to compel the witness to answer the question by threatening him with imprisonment, or if he refused to answer, by moving that he be committed, Then the question would have arisen, whether his refusal to answer was a contempt; and then his noble Friend would have been right in urging, first, that the question was immaterial to the inquiry—for that would be an answer to the question of contempt; and second, that it was a question the witness was not bound to answer, whether it was material or not. But they had not yet come to that stage of the proceeding; for he was inquiring as to a fact of which evidence had been read, but not sufficiently expounded, and upon which they were not in a position to form a correct opinion as to whether the witness was compellable or not to answer the question. But if his noble Friend was wrong in that matter he would permit him to say that he was more marvellously in error as to the grounds which he laid down for protecting the witness from answering the question; for it was the first time in the course of his life that he had ever heard this proposition—that a witness could be protected from answering a question put to him by a Court. Why? because he had taken the opinion of counsel, and counsel learned in the law had told him that he was not bound to answer a question. He also begged his noble Friend to consider whether this was a tenable proposition—that they could not put this question because an unknown person came to the witness and told him to bring these qui tam actions. Why, was not that man his client? If he went to an attorney who did not know him and instructed him to bring some qui tam actions for a public spirited purpose as his noble Friend thought, but at the same time told the attorney not to make him the qui tam plaintiff, but some man of straw, and the attorney employed his clerk to act as plaintiff, was not that a juggle? Could any mortal being doubt, that the real employer in this case was the unknown person? Could any man say that the witness was not bound to disclose the name of his client? It was clear the witness could not protect himself against it. He might protect himself against answering what he had heard in the presence of his client and in consultation on that 1150 client's case; but that was not the ground of refusal which this witness took. He (Lord Brougham) admitted that this witness was not bound to answer the question he had put to him, unless he made it clearly appear that he had no knowledge of the name of that person; but it was quite the contrary. Then came the other question. His noble Friend said they had nothing to do with this inquiry, but he (Lord Brougham) said they had, and that this question was quite material. It was for the House to consider whether they had a right to have an answer to that question; and they should recollect that the Bill related to whether the petitioner had a right to have this Bill stopped, for if it turned out that this party had no interest in the Bill, but that another person was interested, it was quite clear they had a right to have that other person's name, and that it was most material to the inquiry. [A noble Lord: Why?] Because they could not get through the inquiry without it. [Lord Wharncliffe: The question is,—who is the party injured by the Bill?] That was the question; for when he was about to injure a party had he not a right to know against whom he was levelling this Act of Parliament? The law of the land was this,—if there were two parties before a court, one party had a right to ask his opponent in cross-examination any question he pleased for any purpose, and the court had a right to examine him on any one subject for any purpose which it thought would help the inquiry. Now, if his noble Friend had permitted him to put another question, he (Lord Brougham) and his noble and learned Friend on the Woolsack anticipated that the answer to that second question would have put an end to the inquiry, and would have rendered the committal of the witness unnecessary.
§ The Duke of Richmond
said that his noble Friend (the Earl of Radnor) had taken up this case with great warmth and but little consideration. The noble Earl had accused the Committee of striving to fish out the name of an individual to serve the purposes of Lord Eglintoun. If that had been said out of the House, he (the Duke of Richmond) would have given it a very short answer—he had had no commucation with Lord Eglintoun upon the subject. The facts of the case, however, were these. The Committee of the House of Commons having refused to examine this person, he complained that he was aggrieved and the Committee of their Lordships' House consented to call him in order that he might 1151 have an opportunity of clearing his character: and the only thanks they now got for so acting was, this charge of having put questions to him for the purpose of serving persons of their own party. The matter into which the Committee had to inquire was, the operation of the laws relating to gaming, and he thought it was quite consistent with this inquiry that they should ascertain who was the party who brought these qui tam actions. Why, it might happen that this very person who was afterwards to get half the proceeds of the penalties might be the foreman of the jury who was to try the case. This question, therefore, had been put by the Committee, but the witness having declined to answer it, they did not press it.
The Earl of Eglintoun
said, that he had an equal right with the noble Chairman of the Committee to feel aggrieved at the accusation made by the noble Earl (Radnor). He begged to say, in answer to the surmise thrown out by the noble Earl opposite, that until he had mentioned the circumstance he (the Earl of Eglintoun) was not aware that the Committee had asked the question to which the noble Earl objected. He (the Earl of Eglintoun) believed tkat many Members of the Committee were very good friends of his, but he did not think that any of them would ask any questions from such unworthy motives as the noble Earl had imputed to them.
The Earl of Radnor
begged to explain that he did not know until after he had got into the House that any action had been brought against the Earl of Eglintoun; and the impression which he had received from reading some of the questions put to the witness—he alluded more particularly to questions 229 and 238—was, that they were put with a view of ascertaining who was the real party who had brought these actions with a view of recovering the costs. He begged to add, that nothing which he had heard from the noble and learned Lord had removed his objection to this course of inquiry.
Counsel and witness again called in, and the witness further examined; and counsel and witness were again directed to withdraw.
§ The House was then put into Committee.
§ Bill reported without Amendment.