HC Deb 01 June 1809 vol 14 cc837-51

On the motion of Mr. Curwen, the house resolved itself into a committee on the Seats in Parliament Bill, Mr. Wharton in the Chair,

The Right Honourable the SPEAKER rose, and addressed the Committee as follows:

Mr. Wharton

;—Before you proceed to put the Question of Reading this Bill a first time, I wish to offer myself to your notice:

And although I am at all times unwilling to request the attention of the Committee of this House, thinking that I should render them no service by mixing in their general Debates, and feeling also the inconvenience of being precluded afterwards by my other duties in this House from explaining or defending my opinions in any subsequent stage of discussion; nevertheless there are some subjects of a paramount importance, upon which I do conceive that I have a personal duty imposed upon me (and perhaps the House may think in some degree an official duty) to deliver the sentiments which I entertain:—And such is the present.

The Question now before us, is no less than this—Whether the Seats in this House shall be henceforth publicly saleable?—A proposition, at the sound of which, our Ancestors would have startled with indignation; but a practice, which in these days and within these walls, in utter oblivion of every former maxim and feeling of Parliament, has been avowed and justified.

We are now, however, come to a pass from which we have no retreat. Upon this Question we must decide, Aye or No. To do nothing is to do every thing. If I we forbear to reprobate this traffic, we give it legality and sanction. And unless we now proceed to brand and stigmatize it by a prohibitory Law, I am firmly persuaded that even before the short remnant of this Session is concluded, we shall see that Seats in this House are advertised for sale by Public Auction: And we shall have brought a greater scandal upon Parliament and the Nation, than this country has ever known since Parliaments have had an existence.

According to the course which these Debates have taken, three distinct points have been put in issue: First, Whether the traffic be a Political Evil; in the next place. Whether it be any Parliamentary Offence; and lastly, whether there is any safe and practicable Remedy by which this mischief can be put down for the time to come.

Sir; Into the first point, Whether this be a Political Evil, I do not mean to enter at any length; nor is it necessary to my purpose.

That the Influence of Property in maintaining Civil Order is of the highest importance, no man living can doubt: it is the firmest cement to all the relations of social life, it gives Stability to the State, and Prosperity to the Empire. That the Possessions of Property may, and must, and ought to have a predominating Influence in the Election of Members to serve in this house, I think is equally clear. But, that, abandoning all their legitimate rights of Influence, and laying aside all the virtuous and generous Motives of Friendship, Affection, and the fair preference of Talents and Integrity to fill places of such high Public Trust, they should go to a shameless and open market; that they should sell the Attachment of their Friends, Neighbours, and Dependants, for dry and sordid gain; and sell it to utter Strangers, of whose Qualities they can have no other Estimate than the Weight of their Purses; this does indeed appear to me to be a great Political Evil, and a great Public Grievance. It degrades and debases the habits of the higher ranks of life, who confess their own sense of the nature of these transactions, by the concealment with which they seek to cover them: It taints also and contaminates the general Character of Parliament: and it furnishes the most formidable weapons to those who are professing, and I am willing to believe sincerely professing, to reform, but as I fear, are, in truth and in fact, by the tendency of their endeavours, labouring to subvert the entire System of our Parliamentary Representation.

With respect, Sir, to the next Question, whether these practices are any Parliamentary Offence. That it is a high Parliamentary Offence, every page of our History, Statutes, and Journals appears to me to bear evidence.

It is essential to the very idea of Elections that they should be free, (a) Such is the antient language of the Statute of Westminster in the reign of Edward the First, speaking of Elections in general (b): such also is the modern language of the Bill of Rights, with reference specifically to the Election of Members to serve in Parliament;(c) and we have a memorable instance in the year immediately following the Revolution of the sense in which this fundamental principle was understood, in the case of the Cinque Ports; for by a Statute in the Second or William and Mary, it is not enacted only, but declared, that for the Lord Warden to nominate or recommend any Member to serve in any Port or Place within his jurisdiction, was a violation of the Freedom of Parliaments, and contrary to the Antient Laws and Constitution of the Realm (d)

In the description of these Offences, which constitute a Violation of our Privileges, there is nothing technically narrow, but the Rule is to be tried by its substantial Effects. Force, Fraud, Corrupt practices and undue influence of any sort, by which the freedom of Elections is controlled, have, been reprobated in all ages.

These Offences, if pursued as matter of personal delinquèncy, were antiently triable before the Committee of Privileges; if they touched the Seat, they were cognizable in the Committee of Elections. At a later period, [Anno 1592] when these Committees were united, all such offences were (a) 2 Doug. p. 402. (b) 3 Edw. I. c. 5. (c) 1 W. & M. Sess. 2. c. 2. (d) 9 W. & M. Sess. 1. c. 7. of course tried indiscriminately before this joint jurisdiction. And so things continued until happily the functions of the Committee of Elections were transferred by the Grenville Act to a better Tribunal. But the general conservation and vindication of our Rights and Privileges, except so far as divested by special Statute, still resides, as we all know, in the House at large, and its Committee of Privileges.

Whoever therefore looks into the proceedings of all these several jurisdictions according to their different periods, will find abundant traces of the inquiries which have been instituted, and the censures which have followed upon offences of all these descriptions. And from the period of the Revolution, we may see them exemplified in the prosecutions conducted by sir Edward Seymour against the Directors of the New East India Company in the reign of King William; in the Reports of the Secret Committee upon the last ten years of Sir Robert Walpole's administration during the last reign; in the charge brought against Lord North upon the Milbourn Port Election, and the general character of these Offences is evidenced by all the language of similar proceedings, in our own time.

But, Sir, beyond this:—Practices of this description are not only offences by the Law of Parliament, they nave been long since adjudged to be criminal by the Common Law of the Realm.

The Bribery of Votes was adjudged by the Court of King's Bench, in the early part of the present Reign, to have been a Common Law Offence, (e) even though no precedents could be adduced to show it, and to have been punishable as such long before its encreased prevalence made Parliament deem it necessary to restrain it by special Statutes(f). And in like manner any previous agreement or compact to control the Votes of Electors (even although the Electors are not themselves bribed) has been adjudged to be illegal upon general grounds of policy and jurisprudence.—Such was the Case which arose in the Burgh of Stirling in the year 1773,(g) where some of the Town Council had entered into a corrupt Agreement to divide the Profits of the Burgh, and (e) K. v. Pitt & Mead, Burr. Blackstone. (f) 7 W. III. 2 Guest. (g) 2 Doug. p. 412. Wright's Law of Elections. what they were also pleased to call the Parliamentary Profits, and to bring no person into the Magistracy but such as should vote with them upon all Parliamentary Elections; under this Agreement, Elections were had and passed unanimously. But when this Agreement was discovered and questioned, although it was manifest that the other Electors were neither party nor privy to the Agreement, nor had profited thereby, the Court of Session not only declared the Agreement itself to be illegal, unwarrantable, and contra bonos mores, but also that by reason of the undue influence under which such Elections were had, all those Elections were void and null. This Judgment afterwards came by Appeal to the House of Lords, and was there, in November 1775, affirmed.—At a later date, another question of this sort came before an Election Committee under the Granville Act, from the county of Berwick, in 178l. (h) The Petition there stated that two of the Candidates had by themselves, and friends, combined to control the Election, by chusing first one of those two Candidates, who should sit for a certain number of years or sessions, and then that the other should be elected to succeed him. The Election Committee before whom that Case was tried and proved, reported the Agreement to be corrupt and illegal, and voided the Election

What, therefore, it remains for us to do is plain. And as our Ancestors, when they found the censures of Parliament, and the decisions of the Common Law, were insufficient to restrain the growing practice of Bribery to Voters, proceeded to super-add the cumulative penalties of the Statute Law; so also it is for us, who have before us such flagrant proofs that the traffic in Seats has broken through the existing checks, to put it down by a new Prohibitory Law.

And now, Sir, we are brought to the last consideration—whether we can by any safe and practicable Remedy suppress the mischief: And of this I have no doubt, if with sincerity and diligence we apply ourselves to the task.

According to my views of this subject, the Committee will perceive, that I must naturally desire in the first place that our Law should be in itself declaratory; lest we should impair the principle which we are endeavouring to strengthen. The definition or description of the offence should (h) Com. Jour. vol. 38, also be marked with such a degree of precision that we may not include in it things or consequences beyond our own intentions. And the prohibitory provisions should be such as are most analogous to the rest of our Election Laws upon corresponding cases.

Of course, the honourable Member who has brought in the present Bill will not be surprized that I should think he has fallen short of the true point, in not making it declaratory. As to the main part of his enactments, he will also be prepared for my dissenting from the use of such lax and wide modes of expression as he has employed; a defect into which it is no peculiar reproach for him to have fallen, as our modern forms of legislation have too much involved all our provisions in language so cumbrous that it is generally difficult to discover their sense and substance, through the multitude of words with which they are overcharged. But beyond this, it is quite impossible for me to consent to that part of his proposed enactment which makes the tenure of Seats in this House dependent upon Judgments to be obtained in the Courts below, or in any way puts the trial of our own Rights out of our own accustomed jurisdiction.

With regard to the Oath proposed by the hon gentleman, it is such in its present form as I should entirely object to. I do not know that a proper Oath for a proper purpose is in itself an exceptionable provision by law. Nor do I think that for solemnity or importance, so long as any Oaths are used in Election Laws, that any occasion for it could be more suitable; agreeing as I do very much with sir William Blackstone in opinion, that the Oath. If administered to the elected, would be far more effectual than when given to the elector. Nevertheless, knowing that to many persons any form of Oath whatever upon this subject would be highly obnoxious, and not thinking it indispensably necessary to the efficacy of the Bill, I should not be disposed to insist upon it.

What I should require would be, that the party who purchased should not reap the profit of his bargain, but should fall under the same disability as that enacted by the Act of Wm. the Third, which I think would be improved also, if it excluded him not for that vacancy alone, but for the whole Parliament. The party who received the price of his venality should also of course forfeit it, with any further penalty which it might be thought right to superadd.

And, beyond this, I would think it a proper course to declare it by positive law, what is implied by the judgments which I have already cited—that by such traffic each party becomes guilty of a Misdemeanor.

Upon the whole, Sir, that for which I am most anxious is the establishment of the principle; being firmly persuaded that honourable minds, which may have hitherto deviated from what I think was the straight path of their duty, or may have been made to vacillate by the practices which they saw prevailing around them with impunity—will shrink from them with abhorrence, when they find them condemned by a specific law: And other men, if actuated by motives less honourable, will be restrained by fears not less efficacious.

I shall therefore listen with satisfaction to any amendment that goes this length, accompanied by such brief and distinct provisions as may give a reasonable security that its execution will be accomplished.—And I shall be contented to lay aside for the present all questions of doubtful policy or difficult expressions; thinking it better to reserve them for future experience, and, if necessary, for future legislation.

I would presume also to recommend this course to the House, as the most prudent and most likely to contribute to the further progress of this Bill, and its ultimate passing into a law; on my own part most cordially and earnestly hoping for its success, as a measure which has now become indispensable to the honour of this House and of the Country.

The Chancellor of the Exchequer

observed, that the alterations which he had been enabled to frame would go a great way to meet the ideas of his right hon. friend who had just sat down; and he concurred with him, that it would be equally wise and prudent to make not only an enacting but a declaratory law. He also concurred with him, that the person guilty of this offence ought at least to be deprived of his seat. It was not necessary, he thought, to state what the law was before. He would merely say on that head, that in his opinion the law was so doubtful, that in a court of law, if the point came forward in a civil suit, it would be declared to be unlawful; but if a person should be indicted for a misdemeanor, the law was not so very clear, but that the defendant would in all probability be acquitted. If the offence could be described in such a way as not to endanger the safety of the innocent, he should be ready to concur in the principle of the measure. But at the same time, the enactments ought to be well guarded, for he confessed that he had felt great difficulty lest the house should controul where it had no such intention; and he thought they ought rather to fall short in the first instance, than go too far. The object was to come at the case where there was a distinct, sale of the seat. In this case, it would be proper to reach not only the individual who could influence the whole of the voters, but also the person who by a minor interest could effectually decide the election between two candidates. It would be still farther necessary to extend the provisions of the act to the person who received money for his influence, whether he was a voter or not, and to render a contract for the payment of money to any person for his influence a ground for vacating a seat. He perfectly concurred in the opinion, that he who also received the money ought to be liable to a forfeiture of the whole; to be punished for a misdemeanor; and he would further propose a penalty of 500l. to the informer. But he was rather disposed to stop short of what had been suggested by his right hon. friend, respecting the rendering this offence in the member a misdemeanor in a court of common law; for if such an offence was tried there, and a verdict of guilty pronounced, the house would consider the crime as proved, and proceed to expel the member; which would throw the question of the validity of a seat in that house upon a court of common law.—The same objection, the right hon. gent. admitted, applied to the bribery laws at the present moment; but it had so occurred, that since the passing of the act of the 2d of George II. the offence had never been brought to a court of common law, till previously exposed by a petition in that house. He thought also that certain limits of time as to the inability of the member should be established, and that the seat should be merely vacated in the first instance. He was not surprized that, at first, it should be intended that the bill should extend to the promise of offices. But the more he considered this the more it appeared utterly unsafe to go to this extent. Offices there must be: the business of the state could not go on without them. The disposal of offices must rest somewhere, and here that power was vested in the crown. That this power must create influence was beyond all question; and every body agreed that it was proper that such influence should exist in the crown. The only objection that had been made was to the extent of it. But the effect of such a regulation as that which was proposed with respect to offices, would be, that none would either ask or receive an office without the risk of a conviction for a misdemeanor, however innocent. The only evidence which a jury would have to decide upon would be, that a member had procured an office for a friend who had voted for him at an election; and the probability in many such cases would be so great and the difficulty of proving the absence of all corrupt motives so considerable, that the most innocent men could hardly escape conviction. It might be said out of doors, that he urged these arguments for the purpose of preserving the free use of the patronage of his office. But he should not do justice to that office, nor to the house, unless he stated plainly his views on the subject, to whatever odium it might expose him. If he were to adopt the proposition, he would expose the consciences of all who were to succeed him to the greatest snare that could possibly be imagined.—Another object was, to guard against the possibility of conviction for the lawful expences of an election, such as the payment of agents, &c. Such expences did lawfully occur in the election for the largest counties particularly, and he instanced the last election for the county of York.—With regard to the Oath, the right hon. gent. had observed, that the difficulty of describing and qualifying the acts to which it was to refer with sufficient precision, rendered it wholly inadmissible. Suppose an oath had existed in the case of treating, one Committee might decide that a certain act came under the provisions of the treating law, while another decided in a manner directly the reverse. It would be impossible, in such cases, to ascertain what a member might safely swear, and what not. The hon. gent. (Mr. Curwen) proposed to bring the question of the Seats before the law courts; and even with the proviso against conviction for legal expences, the court of law might hold that to be illegal which a committee would pronounce to be legal. It was, therefore, impossible to admit of the oath, without a degree of precision of which he did not at present conceive the case to be capable.—The right hon. gent. then proposed his amendment, that the member guilty of purchasing his seat for money should lose it; that the person receiving the money should forfeit the whole, be liable to a penalty of 500l. and to conviction for a misdemeanor; with the proviso that the act should not extend to the sale of estates to which influence was attached, not to legal expences at elections. This might not be altogether satisfactory to some gentlemen, but it was as much as the house could do, with safety, in the first instance.

Mr. Curwen

congratulated the house upon the important information derived from the high authority (the Speaker), with whose sentiments they had been favoured upon this subject. With respect to the measure which he had thought it his duty to bring forward, as it was prepared in a hurry, he was willing to admit the probability that it was very inadequate to its object. He should, therefore, be ready to pay every possible attention to any amendment that might be suggested. No difference of opinion, he perceived, appeared to exist as to the necessity of a provision of this nature. So convinced, indeed, was he of that necessity, that if asked whether he would rather have the regulations proposed by the Chancellor of the Exchequer than nothing, he would promptly say, that however inefficient he, considered those regulations, they should have his support. At the same time, he could not help observing, that he must consider any arrangement upon this business unequal to answer the end in view, if the oath were omitted. He did not mean to be tenacious of the particular form of oath which he had submitted, but he thought that such an oath should and could be framed, as would serve to guard against the evil complained of, and at the same time be free from the objections urged by the right hon. gent. The hon. gent. concluded, with protesting against the idea of supporting any proposition which could in any degree tend, as seemed to be the apprehension, to transfer to a court of law that jurisdiction over its own members, which ought alone to belong to that house.

Mr. Ponsonby

was of opinion, that the effect of the Chancellor of the Exchequer's proposed succedaneum for his hon. friend's bill, would be to vest the patronage of the boroughs almost entirely in the minister of the day, and therefore he should oppose it. The right hon. gent.'s conception of the oath proposed by the bill, appeared to him very extraordinary indeed. If the crime to which the law was meant to apply was intelligible, and nothing, seemed more explicit, he could not see the difficulty of understanding the oath, or that any conscientious man could hesitate to take it. No man of common sense, indeed, could have any apology for hesitation upon the subject. He thought, however, that in order that the question should be fully considered, the bill should be re-committed, and that the regulations proposed by the right hon. gent. should stand beside the provisions of that bill, and be fairly compared with them. It was due to the character of the house, and the opinion of the public, particularly after recent transactions, that this business should be thoroughly investigated. The evil to which the bill referred was long known to prevail, and after that confession by the house, what was the country to think if it should go forth that no adequate remedy could be provided? After the confession was made, the house was bound to contrive some remedy. For could any thing more extraordinary be imagined, than that the solemn trust of legislation should be bought for money; that it should become a matter of bargain and sale, and that such a thing should be publicly declared to a free country, accompanied by an admission that the evil was incurable? This, however, he would not believe. What! the sale of seats in that house should be notorious, and that the scandalous interposition of the Treasury to purchase such seats should be equally notorious, and yet that no remedy was to be provided? It was impossible that the public could think the house sincere if it did not frame a measure calculated to put an end to those practices, not only on the part of the Treasury, but of individuals also, and that all members should be bound to swear at the table, that they did not owe their election to such practice; subjecting to the most ignominious penalty any man who violated that most sacred obligation.

Sir John Anstruther

congratulated the house on the advance they had made in this necessary measure, and the excellent effects likely to ensue from the clear mode in which the law had this night been laid down from high authority (the Speaker). He expressed a strong wish that the right hon. gent. had also given them the advantage of his ideas on the manner of carrying the law into effect by this bill; particularly with respect to the Oath. He could see no difficulty in applying the Bill to the exclusion of patronage as well as of money, and had no objection to the clause of the Chancellor of the Exchequer with the addition of the words "office, place, or employment," as subjecting to the penalty.

Mr. Tierney

considered this bill as of the utmost importance to establish the purity of election. But if no adequate provision could be made to guard against the undue influence of the Treasury at elections, the bill must be nugatory. The framing of such a provision he, however, did not think at all impossible. It did, indeed, appear a monstrous proposition, that the grant of any place or patronage for the purpose of improper influence at an election, could not possibly be provided against. If any such proposition could be bottomed upon sound sense, he would immediately call upon his hon. friend to abandon his bill. As to an action against any member who should violate the obligation proposed by the bill, he would ask, how could it be supposed less practicable to maintain such an action for any penalty than that already prescribed by law, against, for instance, any contractor who should become a member of that house? With regard to the oath, he thought it essential to the object of the bill; and he was also of opinion, that a clause should be introduced, subjecting to heavy penalties those who should dispose of patronage in any manner to contravene the spirit of such a measure. But his impression of the importance of the oath, as applying to such dark transactions, was such, that he would rather adopt the oath alone, than take all the Chancellor of the Exchequer's clauses without the oath.

Mr. Rose

had no objection to any penalty or imprisonment that might be proposed, to provide against the evil to which the bill referred, but he must deprecate the oath, because he thought that conscientious men might feel it difficult to take an oath which was merely a construction of law. If corrupt practices could be distinctly defined, this objection would not supply. But really, as the matter stood, he did not see that the oath could in all cases be safely taken by those even who meant not to offend.

Mr. C. W. Wynn

argued ably in favour of the bill, which, however, he conceived would be not only nugatory, but mis- chievous, if it was not framed so as to apply to the patronage of office, as well as to the grant of money. After the incontrovertible evidence which had recently appeared, with regard to a traffic in patronage for the purpose of purchasing a seat in that house, the people must consider any measure of this nature as a mere mockery, if it did not provide against the recurrence of such scandalous practices. As to the objections offered against the adoption of the oath, he confessed that he could not feel their weight. He could not conceive any reason why men should not be prevented from giving as well as from receiving, bribes at an election. Indeed, he was convinced that such prevention ought to exist; the more particularly when he reflected upon the disgraceful advantage which had been taken of the law as it stood. He had, in fact, seen members of that house come forward in a court of law to prosecute under the bribery act, the very men who had accepted bribes from them; thus acting the part of informers, in order, as they avowed, to save themselves. What an exhibition for an intelligent and honest public to contemplate? But he hoped that this measure would be so contrived as to guard against the recurrance of such scenes.

Mr. Hawkins Browne,

from all the arguments he had heard, considered it as very difficult to frame an Oath which would not imply an opinion on the construction of the law. He was therefore adverse to it, as tending only to exclude conscientious men from the house, in order to make room for the perjured, worthless, and abandoned. Dispensing with the oath, he would be happy to give his assent to any proposition that would rescue the house from the aspersions of corruption thrown upon it; but if the question of the oath was annexed to this bill it would compel him to vote against it.

The Right Hon. THE SPEAKER, thanked the committee for the flattering attention and deference that had been paid to his sentiments, and had now only to offer his opinion on the subject of the new clause which had not been introduced when he last addressed them. He had no hesitation in stating it distinctly as his opinion, that unless the Bill applied to the grant of offices in return for seats in parliament it would be mainly deficient. It appeared that under the title of "gift or reward," that application was included, and as the bill already covered the case, it would be much better to have the enactment distinctly made, The course the committee would now have to pursue would be, to receive the amendments proposed, and have them printed. It would then be a proper motion to decide that the bill with the amendments be recommitted.

The Chancellor of the Exchequer

admitted the strength of the observations of his hon. friend, who had just sat down; but said at the same time, that the oath was so generally worded as to call for amendment. The oath by which any man was to be bound could not be worded in too special pleading a manner. This might seem an odd phrase, but his meaning was, that a man should thoroughly understand that to which he was to swear. He reminded gentlemen of that interchange of kindness that so generally took place between the electors and the elected, and which yet might, however honestly accepted and proffered, give rise to serious scruples in the breast of a man of honour in taking that oath.

Mr. Ponsonby

submitted to the committee, that all those members who had amendments to propose should propose them, in order that they might be printed together with the bill, so as that the house would be better able to decide upon the respective merits of the amendments.

Mr. C. H. Hutchinson

said, that he could not avoid taking that opportunity of expressing his personal acknowledgements to the right hon. the Speaker, for the manly, dignified, and constitutional part he had that night taken in the discussion upon the bill then before them. Anxious as he was that the house should stand well with the country, he must be glad to witness such conduct in any member, but peculiarly happy was he to see such conduct sanctioned by all that grave authority, that must have the effect of making it exemplary. He would return to his home from the house that night, with a prouder sense of his situation as a member of that house, than he had reason to indulge in for many nights back.

Mr. W. Smith

was of opinion, that the objections to the oath seemed to be founded upon the supposition that the same practices which now existed would still continue to exist; but he rather thought that, should this bill take effect, its operation would be so salutary as to counteract those practices which it was thought would run counter to the oath.

After a short conversation between the Speaker, Mr. Tierney, the Chancellor of the Exchequer, and Mr. Curwen, it was agreed that the Bill should, in the first instance, be printed, together with the Amendments, for the perusal of the members.—The house having then resumed, the report was brought up, and the further consideration was ordered to be gone into on Tuesday next.