OBSERVATIONS. (Hansard, 5 March 1869)

§ MR. VERNON HARCOURT

rose to call attention— To the situation in which the House of Commons is placed by the absence of any authentic record of the judgments delivered by the Judges appointed to try Election Petitions; which judgments interpret and declare, without appeal, the Law of Parliament, upon which depend the rights of the constituencies, the title of their representatives, and the constitution of the House of Commons. He said, that since he gave this Notice he had received a great number of letters from different parts of the country which indicated that an extraordinary degree of interest was taken in this question. He did not intend to raise the grave and difficult question of the policy of the change recently made in the tribunal for deciding election petitions. Whether it would ultimately turn out that the Lord Chief Justice was right when he earnestly protested against the scheme adopted last Session, or whether the House of Commons was right when, by a self-denying ordinance—which he might almost describe in the words of the great Italian poet, when he spoke of "the men who through timidity made the great refusal"—it came to the conclusion that it was unfit to be the judge of its own privilege, was a question he would not ask the House to discuss or decide; that must be determined by the experience of the future. Neither did he intend to raise a question as to the propriety of any particular decision. If anyone was disposed to criticise those decisions he was not that person. Assuming the propriety of the change of the tribunal and the absolute justice of its decisions, the point to which he wished to call attention was the sit- 760 uation in which the House was placed by the change which had been enacted. Formerly, a Committee of the House fulfilled the office of jury; it gave a decision upon a particular case; it was no doubt to a certain degree governed by the precedents of the past; but it was also at liberty to decide de novo upon the law as it stood. As soon however as we placed the decision of election petitions in the hands of the Judges we arrived at a new state of things; we got into a region very well known to lawyers, and partially known to laymen—the region known by the name of Judge-made law; when the Judges proceeded to interpret the law, they in fact made the law which they declared. The privileges of Parliament and of the constituencies were now in the hands of the Judges, and yet the House of Commons was absolutely ignorant of their declaration of the law. The other day the Secretary of State for the Home Department, when asked the question, did not even know whether notes had been taken of the judgments, which, being declarations of the law, were the making a law; and the right hon. Gentleman seemed to think it was immaterial whether we had them or not. With that view he could not concur, for, as the Judges had the power of deciding on the composition of the House, and of determining, as had been done in one case, that an individual should not be entitled to sit in it for seven years, it seemed to him it was of the first importance that the House should know the grounds on which their decisions were based. The furnishing the House with the Report without the judgments was like supplying them with the mere decree of a Judge of the Court of Chancery. The public would never be content with the mere decrees given in courts of law; the decisions were taken down by skilled professional reporters, and their reports were authoritative; they were regarded in the light of law, and for the future they governed the law. Now, they knew that Her Majesty's Judges, before whom these petitions were tried, had exercised a very wise discretion, and, in the knowledge that the public would expect the reasons for their decisions to be given, they had entered into these reasons at length. In spite of that, however, they were told that the decisions were not to be laid upon the table. This, too, was the more surprising, inas- 761 much as the evidence taken at the trial of these petitions was forthcoming. In the Bradford case, which was one of great interest, they had a great mass of evidence, but where was the law? He could not understand why the decisions should not be laid on the table, especially as in one case—that of Bewdley—both the evidence and the judgment had been placed before them. He understood that notes of these decisions had been taken, and consequently they could without difficulty be supplied. Now, as a matter of fact, the statutes passed in the House of Commons were sent to Westminster Hall to be made intelligible. When the Statute of Frauds was said by Lord Nottingham to be worth a subsidy, some one remarked that it would cost a subsidy, and the law with which they were now dealing might be subject to a similar remark. The Court of Common Pleas, in a case with regard to securities which came under the provisions of this Act, could not make out what the intention of the Legislature was and after several days' discussion gave the decision one way, because if it was not given that way it must have been given the other. The Court of Common Pleas in Ireland followed the decision of the English court, but acknowledged a preference for the other view of the case. The result of such a state of things, so far as he could observe public opinion, was to excite a great deal of alarm and dismay. Those in the country who desired to see purity of election believed that never at any time were we in so much danger of suffering from electoral corruption. Indeed, they regarded the attempts made by the Legislature in this direction as somewhat resembling the forts at Spithead, about which we had spent so much money and were going to spend so much more, of which it had been said that, having been put up for purposes of defence, they would now serve to guide the enemy safe through the shoals. In fact, it was believed that if a General Election were to be held to-morrow, it would be the most corrupt ever known in this country. He would call the attention of the House I more particularly to the law relating to treating at elections, which was on a most unsatisfactory footing. Mr. Rogers, in his able book, published last year, described the law respecting treating in the following terms:— 762 Although the 17 & 18 Vict. c. 102, has in some respects assimilated bribery and treating, there is a wide difference between the nature of the two offences, both as regards the candidate and the voter. The bribed man votes for the candidate whom in his heart, perhaps, he hates or despises; the other follows the impulse of excited zeal and votes for him who has recommended himself by supposed liberality and hospitality. Bribery is directed to obtain the adverse and to fix the doubtful voters; treating is resorted to to confirm the good intentions and keep up the party zeal of those believed to be already in the interest of the candidate. The distinction between the two offences is, it will be seen, clearly recognized in the above-mentioned Act, by which bribery is made an indictable offence, while treating is not made criminal, and the penalty imposed upon the latter is only half of that attached to bribery. That he regarded as a very fair description of the present state of the law; and as long as it continued to remain in such a state the public out-of-doors would never believe that the House of Commons were sincere in their desire to put an end to treating. He was almost afraid of referring to an earlier period of English history, as persons who did so were supposed to be in their political dotage. But, in the first Treating Act, in the reign of William III., the matter was very differently dealt with. Upon that subject Mr. Rogers said— Treating under this statute, therefore, became an offence without reference to its extent, the intention of the giver, or its effect on the election. The objects of the Legislature, it is imagined, were to put an end altogether to treating within certain periods, to estop the candidates from pleading either moderate or necessary refreshment, and to take away from the House all discretion upon the subject which it was found had been exercised in an arbitrary and unsatisfactory manner. In the later statutes, however, a different principle was introduced for the first time, and the word "corruptly" was introduced; and thus was swept away the effectual prevention which was supplied by the Act of William. The introduction of that word, which governed the whole of the law in relation to this matter, was, in his belief, the cause of all the mischief which had excited so much well-founded alarm throughout the country. Mr. Rogers said— The word 'corruptly,' it will be seen, governs every clause in this section. What is the precise force to be given to this word is by no means clear. He had seen with some interest that there existed a borough in Ireland where it was admitted that the sitting Member had spent upwards of £5,000, and had ob- 763 tained only 127 votes, and the question was reserved for the Court of Common Pleas to determine whether that expenditure had any relation to corruption. Such a state of things reminded Mm of a passage in Tristram Shandy, where, after a long and learned discussion upon the difference between affinity and consanguinity, Uncle Toby very profoundly remarks—"What you say may be very true, still somehow or other, I cannot help thinking that a man must be some relation to his mother." He, in the same way, could not help thinking that the connection between the expenditure and its object, somehow or other was in this case clearly perceptible. They were told that the main point in determining these matters was the question of intention. He had always understood that the doctrine of the law in respect of intention was that a man was supposed to intend the natural consequence of his own acts. When a man came to a place he had nothing to do with and spent £5,000 about persons whom he never saw before, was it necessary that they should be able to dive into his heart before they could decide whether the expenditure of the money was intended to influence the votes of the electors? The whole of the evil had undoubtedly arisen from introducing the word "corruptly" into the Act, for the introduction of that word had proved nothing short of a mask under which corruption could be practised almost with impunity. There was another subject on which he was sure there existed a deep and painful feeling throughout the country, and that was the entire failure of the provision to prevent the collusive withdrawal of petitions. He had seen in the Lobby a deputation of working-men from a place the name of which he would not mention. They were almost in despair at the position in which they were placed. He had received a letter from one of them, in which it was stated that, with the suddenness of a gunshot, a petition had been withdrawn which they had every reason to believe would have succeeded; that 600 or 700 of them had memoralized the Judge not to allow it to be withdrawn, but he decided that he had no power to prevent its withdrawal; and that if the House did not, in compliance with a petition they intended to send in, direct a trial of the petition there would be a great miscarriage of 764 justice. One of the great scandals of the old system was that on the morning of the race the favourite was scratched. The more money there was on a horse, the greater the certainty of its being scratched on the morning of the race. The more certain a petition was of succeeding if it was proceeded with, the greater the certainty of its being withdrawn. From what he had heard he believed the new Act had not much improved matters in that respect, and he believed that nothing would be accomplished till we had a public prosecutor. As he had said before, the failure was not the fault of the Judges, but the fault of the law they had to administer. It was not necessary he should say that the Judges had administered the law in an impartial and upright manner, and with that learning and intelligence which belonged to them. He thought that the law ought to be amended without delay; and for that reason he had ventured to bring the question before the House, and to ask that, as a preliminary, the authoritative declarations of the Judges as to the present state of the law should be laid before Parliament. He was not an admirer of amateur legislation, and he did not propose to take any further step in the matter; but he asked Her Majesty's Government to take it in hand and deal with it at once. He hoped there was an end of that unconstitutional interregnum when the Government did not govern, and the Opposition did not oppose. We had now a Government with a great majority, and which ought to be able to govern; and we had an Opposition, which, though not so strong as it had been at other times, was under able leadership, and was able and probably willing to oppose. He hoped his right hon. Friend the Secretary of State for the Home Department would not tell him that the question was going to be sent to a Committee. It embraced only two or three short points; and he ventured to say that the Attorney General and the Solicitor General could in half an hour prepare a Bill that would settle the whole thing. No Commission was required in this case. He was sure that it was a subject on which both sides of the House were of one mind; and under these circumstances he hoped to hear a satisfactory statement from his right hon. Friend.