§ On the Motion of Lord Althorp, the House resolved itself into a Committee on the Reform of Parliament (England) Bill.
§ The Chairman having read Clause 69,
§ Lord Althorpmoved the introduction of certain words, declaring, that the expense of polling booths for elections in counties should not exceed 40l. each, and the expense of polling booths for cities and boroughs should not exceed 25l. each.
§ Amendment agreed to. And clause agreed to.
Clauses 70, 71, and 72, were severally read, and agreed to.
Clause 73 being read, which enacts that all laws, statutes, and usages, now in force respecting elections should be and remain in full force, except so far as they are altered or repealed by the present Act,
§ Mr. Godsonthought it would be better to postpone the passing of the clause, as it would leave the old and new election laws in concurrent operation, and thus prove the source of endless legal controversies. He was of opinion, that, in framing this part of the Bill, the laws on the subject already in existence, and the customs of boroughs, should be carefully considered, for if they clashed, they might, in many instances, cause great inconvenience.
The Attorney Generalcould not conceive that his learned friend was serious in expressing his opinion, nor could he imagine what purpose would be served by entering into a discussion of all existing 426 election laws, and how all the boroughs of England would be affected by the Bill. If such were to be the preliminary proceedings, the measure would never be carried.
§ Sir Edward Sugdensaid, it was impossible to ascertain what was to be the law of elections out of the Act of Parliament now before the House. Had the proper course been taken, all the existing election laws would have been condensed in a single statute, so as to have dove-tailed in with the Bill. The state of uncertainty would cause, in many instances, considerable expense and inconvenience, which, he was satisfied, the promoters of the Bill would find to their cost.
§ Lord Althorpwould not undertake to say, that the Bill had been compared with the existing election laws, but it was drawn up by a Gentleman of great experience in that department of legal information.
§ Sir Charles Wetherellmaintained, that the clause was sheer nonsense; it did not declare what was to remain, nor what was to be abrogated. The uncertainty would create expense in the administration of the law, and candidates would frequently have to petition that House, in order to ascertain what was left of the old law and usages.
The Attorney Generalsaid, the clause was introduced in conformity with the established custom, which was, to declare that, when no alteration was specifically made, the old law and customs prevailed.
§ Mr. Serjeant Wildethought, that the clause would have escaped censure. The law consisted partly of statute law, and partly of usage; and it had been usual, in making alterations of the law, to introduce into the Act making these alterations a declaration of their limit. In the 6th George 4th, called the Bankrupt Act, which had been particularly eulogized by the Earl of Eldon, there was a section similar to this, declaring that all usages and laws relating to bankrupts' estates should remain in force, except they were specifically altered by such Act. He concurred in the observation of the hon. and learned member for St. Mawe's, that it would be convenient to have all the election laws brought into one Statute, but that was a matter of convenience independent of this Act of Parliament. It was not proposed to collect the several Acts of Parliament which regulate; I elections; neither was it pretended to alter 427 the course of elections in existing; boroughs; nor was it proposed, specifically, to enact the continuance of those general usages which prevail in all elections. The clause provided, that all local usages should continue to prevail in the boroughs where they exist, and that election usages, which are universal shall apply to all those places which are to return Members under this Act. The case of St. Giles's had been referred to, and it had been asked, how this clause would apply to an election there? Why, the Sheriff would proceed, in such cases, to the election, observing all the Statute laws, and also the usual forms which prevail at elections. If an individual objected to any of these forms or observances, according to the Statute, he would have to point out, in this Act, the clause which altered it, or with which it was inconsistent. As to the inquiry into the usages of each particular borough, in order to ascertain whether the Legislature should or should not repeal them, it would be interminable and useless.
§ Clause agreed to.
On the 74th Clause being put from the Chair, which imposes a penalty, not exceeding 500l., upon any Overseer, Parish-officer, or Barrister, transgressing the provisions of this Bill,
Mr. James L. Knightsaid, that the penalty ought to be more accurately defined than it was in this clause. As the Bill stood at present, a Barrister was liable to a three-fold punishment. First of all, he might be indicted for misdemeanour, as disobedience to an Act of Parliament was in itself a misdemeanour; next, he was liable to an action for a penalty of 500l., at the suit of any beggar who chose to bring such action; and thirdly, he was liable to an action for damages at the suit of any party who was injured by his misconduct.
§ Sir Charles Wetherellagreed with his hon. and learned friend, that a Barrister might reap a harvest of actions from the effects of this clause, for every man, whether he lost a vote or not by his decision, might bring an action to recover the penalty on account of alleged damages done to another by the deprivation of his civil rights. The only parties who could suffer wrong from his decision would be, either the candidate or the voter, and to these parties ought the remedy to be limited. But he had another objection to the clause. He feared that party acrimony would intrude 428 into the Courts of Justice through its operation, and the power given to a Jury to inflict a fine would serve as a premium to create political contests in such places. The Barristers, by the clause, were to exercise the powers of Judges, without the protection that ought to be given them in that character; on that ground he held it to be degrading to the Bar, and would resist it to the uttermost.
The Attorney Generalobserved, that the hon. and learned Member laboured under a mistake when he expressed his opinion that the Judges were not liable to actions at the suit of an individual aggrieved by their decisions, because the hon. and learned Gentleman could not have forgotten the fact, that the Judges were liable to actions in cases where they refused to grant a writ of Habeas Corpus, or to sign a bill of exceptions properly and legitimately tendered to them. Could it be contended, then, that the Barristers to be appointed to act judicially under the Bill would be degraded by being held, under the clause now before the House, amenable to the law, in case they were proved wilfully to have contravened those very provisions in the law to execute which the Act intrusted them? As to the objections of the hon. and learned Member that the fine to be levied rested on the decision of the Jury, that was done to enable them to apportion the damages according to their opinion of the enormity of the offence, and he saw no reason why Juries should be prejudiced in these cases more than in any other. He would allow that informers might bring actions, but they could not follow them up, nor convict the Barrister without entering into a conspiracy for that purpose, which was not very likely to be the case.
§ Sir Edward Sugdensaid, the clause, as it stood, was intended to guard against corruption, which it did not. He was chagrined to see a clause like the present introduced, which cast a stigma upon the entire Bar of the country—a country in which the administrators of the law—the Judges—formed the purest body of men in the civilized world. Before the House gave its consent to the present clause, it ought to pause, for, by consenting, it would introduce into the Bill a precautionary enactment, by which the integrity and character of the Judges of the land were called into question. He felt distinctly opposed to affix any penalty upon a Judge 429 acting judicially, and he thought it was too much to apply this clause with all its powers to those inexperienced Barristers (for such he would call them) who would necessarily be employed, and who were young in the profession, and, of course, not good lawyers: it was a clause which put it in the power of any pauper to sue these gentlemen for penalties. The clause was a species of trail to the junior members of the profession, under which they would be made liable to actions for the non-observance of the slightest—nay, most inconsiderable—point in the duties intrusted to them in the Bill. It was impossible, that during the warmth of an election, the Barrister could please all parties, and this was very effectually opening the door for the disappointed parties to express their indignation.
§ Lord Althorpsaid, in consequence of the objections which had been offered, he was disposed to agree to the introduction of an Amendment into the clause by which the Judge should have the power to stay the trial, should an action be brought, against the Barristers, by any party save those who might feel themselves aggrieved by his determination or decision.
Mr. C. W. Wynnwas opposed most strongly to power being given to a Jury to assess damages or award penalties against the Barristers under this Bill. Hitherto it had been held, that the duty of a Jury on an indictment was to determine the question of guilt or innocence, the power of awarding punishment being left to the Judge. He was aware that an action might be brought against a Sheriff, and that lie might be subjected to double costs and damages, but that was a civil action, and, therefore, was wholly different in character from allowing Juries to assess the amount of a penalty payable to the Crown. The Judges on circuit had the power of appointing the Barristers, and to those Judges ought to be reserved the power to assess or award penalties for wilful misconduct in the discharge of their duties.
Mr. O'Connellsupported the clause as one of the most useful accessions to the Bill. The clause did not authorize punishment for a mistaken administration, but for a wilful contravention of the law. The clause was as valuable in form as it was in substance, and avoided the many technical objections which could be raised, as every hon. and learned Member was aware, to 430 actions on the case which frequently led to a nonsuit; instead of which, the clause made the action simply one for a debt, and the Jury was the proper tribunal to assess the damages. From the frequent experience he had himself had in Ireland at elections he was induced to hope the Government would adhere to the clause as it stood, which would be some control over the conduct of Assistant Barristers and Assessors at elections.
§ Mr. Burgesaid, that in all cases it was a principle of English law that to the Jury was assigned the duty of deciding on the guilt of the party brought before them, and for the Judge to fix the amount of the penalty to which their verdict rendered him liable.
Lord John Russellsaid, one penalty or action would not be sufficient to reach the various faults which might be committed by the Barrister. It was quite obvious that responsibility should rest somewhere, and this clause, giving a power to the Jurors to inforce the fine, was necessary, as, in a previous clause, the appointment of the Barristers was vested wholly in the Judges. He should not, however, have any objection to introduce words to prevent any other parties but those actually aggrieved recovering the penalties.
§ Sir Charles Wetherellsaid, the words he would propose to introduce were, "Provided that no action shall be brought by any person except by a candidate or an elector, or a person claiming to be an elector, and having an interest in respect of such action." This would exclude all common informers, and persons having no interest in the matter.
Mr. C. W. Wynnthought, the voter should be left to bring his action for damages, instead of a definite penalty being affixed, and, in this case, it was also much too large a sum. No act that could be committed under the clause deserved so heavy a penalty, and yet the Barrister might be liable to it at the suit of every voter.
§ Mr. John Campbelljustified the limitation placed to the power of Juries, and also the giving them power to impose a penalty at discretion between 5l. and 500l. for the benefit of the party aggrieved. The grievance might be caused by party feelings, and by mere inadvertence.
The Attorney Generalthought the pecuniary damage and the wrong together, ought to form the estimate of the sum to 431 be given, and it should be left open to the Jury to decide both on the pecuniary damage and the spirit in which it was inflicted.
§ The Amendment agreed to.
§ Sir Charles Wetherellthen moved the addition of a proviso, that parties who were, at common law, entitled should not be deprived of their right to recover under this Act in cases of false returns, or other grievance recognized by common law. Unless some such provision was introduced, the responsibility of the Sheriff would be diminished.
§ Lord Althorpsaid, he had no objection to the Amendment or proviso, if it were considered by legal gentlemen necessary to preserve these rights, as established by common law.
§ The proviso was agreed to.
The blank imposing the penalty was then filled up with 500l.
On the question, "That this clause as amended stand part of the Bill,"
§ Sir Edward Sugdensaid, he must enter his decided protest against it. He did hope that the Committee would have paused in their career before they passed such a penal clause, which, he considered, would cast a stigma upon the profession to which he had the honour to belong.
§ Clause agreed to.
§ The 75th, 76th, and 77th Clauses, were struck out as unnecessary.
On the 78th Clause being read, which enacts that all writs, mandates, precepts, instruments, proceedings, and notices, shall be framed and expressed in such manner and form as may be necessary for carrying the provisions of this Act into effect,
§ Sir Charles Wetherellmoved, as an Amendment, the substitution of the following:—"That all writs, precepts, and other instruments, shall be made out in the manner and form prescribed by law."
The Attorney Generalasked, why this alteration was necessary? It might be requisite to change the form of an instrument under this Act.
§ Sir Edward Sugdensaid, he must support the Amendment, which he thought an improvement in the clause, but he should prefer that the clause itself should be omitted altogether.
§ The Solicitor Generalsaid, the clause was a material part of the Bill, as directing the mode of carrying into effect the various alterations that had been made in the Bill in the return of Members.
§ Amendment negatived.
§ Sir Edward Sugdenobserved, that, in the majority of cases like the present, it appeared that all argument was completely thrown away, if hon. Members who had absented themselves from the discussion rushed into the House to be present at the division, on a question they had not heard debated, just as if they were prepared to vote any way with his Majesty's Ministers. ["no, no!"] He should like to ask that hon. Member who cried "No!" where he had been during the debate? It was right that persons out of doors should see how this question was carried on here. He strongly deprecated the practice, on such an important question as this, of Members rushing into the House to divide, not one of whom had heard the debate. He thought hon. Members should at least have the decency to listen to the arguments by which they were predetermined not to be convinced. It appeared, however, that they considered themselves not bound to hear, but at liberty to vote.
Sir John Hobhousewas at a loss to understand the cause of the hon. and learned Gentleman's warmth. There had been, if not a very full, a very respectable audience, during the discussion of the clause; and great attention had been paid to the observations which the hon. and learned Gentleman had made respecting it. What was most surprising in the case was, that the censure of the hon. and learned Gentleman fell on Members who were distinguished by their habits of regular attendance. There was the hon. member for Taunton—no Member of the Opposition side of the House was more steady in his adherence to their benches; and yet that hon. Gentleman had entered only about five minutes before the hon. and learned Member's exhortation. And was the right hon. member for Tamworth to be charged with inattention to this important discussion, because he was not present when the question was put from the Chair? Those hon. Members, however, who were not present, would scarcely need to apologize to their constituents for their absence. For he could assure the hon. and learned Gentleman that there were many persons in the country who believed that the discussions which were got up on the measure under the consideration of the House had no very fair object. Were Gentlemen to be charged with habitual disregard of the debates of 433 the House, and inattention to the learned Gentleman, because they did not happen to be present at a particular moment? Certainly not; and, indeed, they who were not present had, in his opinion, a good excuse, both before the House and the country, for their absence. There were certain Gentlemen who, in the progress of this Bill, had recourse to a great deal of what might be called unimportant discussion, obviously for no other purpose but to retard its progress. One hour and a half had already been occupied in listening (with a silence which must have been highly flattering) to the arguments of the learned Gentlemen. How did the learned Gentleman know that the crowd did not come to hear him? for, at the moment he rose, those Gentlemen did enter the House. What he (Sir J. Hobhouse) especially protested against, however, was, that it should go forth to the country that what had just occurred was a novel practice in that House; that it was only on this occasion that the appearance of proceeding to a division had occasioned a crowd of Members to enter the House. Unfortunately—if it could be called unfortunately—such had been the practice of Parliament ever since he had known it. The numbers were always mustered just previous to a division. If ever there was a question upon which Members could be excused for having made up their minds, it was a great question like the present. In vain did the hon. and learned Gentleman and his friends appeal to the country on the question of Parliamentary Reform. On that question the country had completely made up its mind. He did not mean to deny that those who were hostile to the Bill were conscientious in their opposition; but he maintained that their opposition was in vain. The country well knew that, in such circumstances, the great majority of the House must give some credit to his Majesty's Government, and to the authors and supporters of the Bill; and the country must also feel, that when an hour and a half had been expended in the discussion of clauses acknowledged to be not very important, it was rather too much to hook upon so unimportant a question a charge against the majority of that House, for that which had long been a practice; and which, if ever excusable, was so in the present instance.
§ Sir Charles Wetherellobserved, that the right hon. Secretary at War, in his 434 first appearance in that character, had thought proper to read a lecture to the Opposition side of the House. The right hon. Baronet had told them, that they did not know what they were about. The appearance of the right hon. Baronet just now was fortunate for his party; but how did it happen that the right hon. Baronet was absent when the question respecting flogging the army was under consideration? Sutor ad crepidam. Let the Secretary at War deal with military matters. Let those who were dealing with a great constitutional question be supposed to know what they were doing. The right hon. Baronet said, that they had been wasting the last hour and a half in discussion.—[Sir. J. Hobhouse, denied that he had used the word "wasting."]—Well, then, the right hon. Baronet had insinuated—no man was more classical or more correct in his language than the right hon. Baronet—the right hon. Baronet had insinuated that he (Sir C. Wetherell), and those who thought with him, had unprofitably employed the last hour and a half. The question under discussion was, whether, by this remodelling Bill, there should be a remodelled Parliament, which should no longer be the King's Parliament, but the Parliament of any party who chose to issue the writs? His party were endeavouring to preserve the Parliament as the King's Parliament, and not as a Parliament by an Act of the Legislature merely; or, in other words, the Parliament should be part and parcel of the Constitution of this realm, and not a Parliament made and created by the House of Commons. That was the important principle which had appeared to him to be involved in this clause, and the object of his argument was, to mark that principle, by providing that the form and mode of the new election should correspond entirely with the form and mode of the old elections. The right hon. Gentleman said, the country had made up its mind: be it so.—that the country would have the Bill: be that so;—that the country were agreed upon a large measure of Reform: be that so. He did not dispute the right hon. Gentleman's premises; but still that was no reason why the machinery of the Bill should not be as perfect as possible. There never was, in the whole history of the discussion of this Reform Bill, a period more inopportune, a time worse chosen, an opportunity less auspicious, than the present for 435 the right hon. Gentleman to give the House a lecture; for it was only that night that an amendment from the Opposition side of the House had been admitted by the noble Lord opposite, who said, "undoubtedly the clause has gone too far, and we will adopt the proposed Amendment." Was that hour and a half un-profitably employed, then? The noble Lord, the Paymaster of the Forces, and the noble Lord, the Chancellor of the Exchequer, were both persuaded that the clause, in its original shape, might be carried to an improper length, and, therefore, they adopted the Amendment. Did the Secretary at War mean to apply his sarcasm to this clause? If he did, his right hon. and noble colleagues were great sharers in that sarcasm—it applied, indeed, to them; for the Amendment proposed was adopted by them, not as a light and superficial one, but as one which was in every way proper to be adopted. It was under these circumstances that the Secretary at War came amongst them. No doubt he would give his Majesty's Ministers his able assistance: they wanted persons of his ability to assist them in many parts of this Bill; they stood in need of persons capable of giving explanations upon its various clauses; and he (Sir Charles Wetherell), therefore, looked forward to the effective co-operation of their right hon. colleague, the Secretary at War. However, the right hon. Gentleman had given the Opposition a bitter flogging, he would not call it a military flogging, but certainly the right hon. Secretary had exercised his cat-o'-ninetails in a manner quite uncalled for.
Sir John Hothousehad not meant to make an attack upon any one; indeed the discussion did not originate with him. The hon. and learned member for St. Mawe's thought lit to attack those Gentlemen who were absent, when he was addressing the House, and he (Sir John Hobhouse) merely observed, that the right hon. member for Tamworth was also absent, and was, therefore, equally subject to the lecture which the hon. and learned Gentleman had thought fit to give. The hon. Gentleman almost charged those who had voted, and had not listened to his speech, with having been guilty of treason against the people; whilst he only stated, that the House and the country had made up their minds to have the Bill, and were not to be driven from it by a 436 speech of the hon. Gentleman. This he was justified in saying in vindication of those who voted, but who had not heard the speech of the hon. Gentleman. He was not in the habit of making personal attacks. With respect to his absence, in the early part of the evening, an apology was due to the House, and also to his noble friend, the Chancellor of the Exchequer. He had been present all the early part of the evening, and he went away for about three quarters of an hour, not anticipating that the question relative to military flogging would have come on at so early an hour. It was not altogether fair in the hon. member for Preston to make an attack on him during his absence. On the abstract question he had not changed his opinion, and he entertained as strong objections to the practice of flogging in the army now, he was in office, as when out of office. Whether in office or not, his opinions were not likely to change. If he had been present, he certainly should have adopted the course pursued by his noble friend. The grounds of opposition to the Motion of the hon. Member had no reference to the abstract question, but only alluded to the particular question he brought forward as to returns. The hon. Member stated no good reasons for furnishing these returns, and, therefore, in conformity with the previous practice of this House, they were refused. He should regret having said anything calculated to give pain to the hon. and learned Gentleman, but he had as good a hearing as most Members had had during the discussions in the Committee; and the observations he made in consequence of a few Members appearing in the Gallery immediately before the call for a division, were more severe than the circumstances of the case warranted.
§ Sir Edward Sugdenshould be extremely sorry if he had exhibited any symptoms of anger at hon. Gentlemen voting without having heard his speech. He had no feeling of the sort. He had no reason to complain of a want of attention on the part of the House; on the contrary, he had to thank hon. Gentlemen for the attention with which they had listened to him that night, as on former occasions. A sense of duty influenced him in making the observations respecting the clause. He did not offer opposition merely with a view to delay the Bill.
§ Mr. Huntvery much regretted that the 437 right hen. Secretary at War was absent when he brought forward his Motion, as, perhaps, he would have given some satisfactory reasons for withholding the information he had applied for: certainly, the noble Lord stated no grounds for opposing his Motion. He did not accuse the right hon. Gentleman of intentionally being absent, but regretted that he was not present. The right hon. Gentleman said, that the hon. and learned member for St. Mawe's was tolerably well heard: now, although, he had good ears, and was sitting close to him, he could hardly hear a word that he said during the whole of his speech. But when the Chairman put the question, and desired strangers to withdraw for the division, he heard a great noise; and on looking round he was surprised to perceive that it was occasioned by the influx of a great number of Members, who were rushing into the division. He had been unable to hear the speech of the hon. and learned Gentleman, and, therefore, had refused to vote.
§ Clause agreed to, as was also Clause 79, which confirms the privileges of the Universities of Oxford and Cambridge.
§ Clause 80 read.
Mr. C. W. Wynnbegged to ask the noble Lord, whether the expense of postage was to be paid by the Overseer or the parish, if by the former, he might refuse to take in the letters, and, by such means, many persons might lose their votes. And again, how was it to be proved that letters claiming the franchise had been duly forwarded, or received? a man might declare that he had given notice through the post, and the Overseer might deny receiving the letter.
§ Lord Althorpsaid, in reply to his right hon. friend, that the expense of postage was included in the general expenses, and was chargeable to the parish, the post, was considered, in other respects, as conveying a legal notice. There were very few instances of the miscarriage of letters.
§ Clause agreed to.
§ The House resumed. Committee to sit again.