HC Deb 10 February 1832 vol 10 cc217-29

The House went into Committee on the Reform of Parliament (England) Bill: Mr. Bernal in the Chair.

Clauses 38 and 39 agreed to.

On the 40th Clause being put, which empowers Judges of Assize to name Barristers to revise the list of county voters.

Mr. Cressett Pelham

said, he had strong objections to the appointment of Barristers to do that duty, which the present returning Officers were perfectly competent to perform, and, therefore, he thought it would be an improvement in the Clause if it was to enact that the present returning Officers, with proper legal advisers should investigate and decide upon all votes. He was sure the electors would prefer that plan to having a lawyer forced upon them.

Mr. Croker

said, he had serious objections to the introduction of the Judges of the land into any political machinery whatever. He thought that they ought not to have the appointment of the Barristers who were to receive the lists of voters in the different counties, for if the Barrister should be accused of partiality of any kind, the Judge who had appointed him, would be made to bear part of the obloquy. He did not suppose that any one person believed that the Judges would make such appointments for party purposes, but the mere suspicion that they had the power would be injurious to their reputation. Under these circumstances it would give him great pleasure if some other mode of proceeding could be devised.

Sir Charles Wetherell

also objected to the infusion of the Judicial Office into any subject connected with the election of Members to sit in that House. Hitherto the separation of the Judicial from Political Offices had been complete. But he objected further to that part of the Clause which gave to the Lord Chancellor the right of overlooking these appointments. That right was in itself a reflection upon the Judges, who, if they were to have the right of appointment, ought to have it without appeal. After all, however, the Chancellor could only appoint on the recommendation of the Judges, so that this offensive Clause would be of no real utility in practice.

Mr. Currie

recommended that the Sheriffs should have the appointment of the Barristers. If there were objections to that, he should wish the appointments to be vested in the Secretary of State for the Home Department, rather than with the Judges, for, by possessing that power, they would have considerable control over the junior branches of the profession, and over the independence of the Bar.

Mr. Baring

did not think that the arrangement would be satisfactory if the Sheriffs had the appointment of the Barristers. There was one plan by which the active interference of the Judges in this matter could be avoided, and that was by leaving the Barristers to be taken out of the number of those who attended the Circuit, or from a certain class of that number, giving the option of refusing the appointment in the first instance to the senior Barristers on the Circuit. If they refused, as it was likely gentlemen in good practice would refuse, then the appointments might be offered in rotation to those immediately below them, and in that way the necessity of imposing a choice upon the Judge might be avoided.

Lord Althorp

admitted, that it was a question of some difficulty as to who were the proper persons to choose the Barristers; the object, however, being to remove the matter as far as possible from any political bias; it had been thought that the wisest course would be to give it to the Judges of the land, and he did not see, that by requiring the sanction of the Lord Chancellor to the appointments, they were casting any slur on the Judges.

Mr. Goulburn

thought that the Barristers had too much power given to them. But it appeared to him, that in their election, the authors of the Bill were not carrying into effect their own intention; for, as the Bill now stood, one Barrister was to be appointed for each county, and his appointment submitted to the approbation of the Lord Chancellor; but in the event of the pressure of business requiring the induction of a second Barrister, his appointment rested in toto with the Judges, without any sanction of the Lord Chancellor being required. He should therefore move, as an Amendment, that the words "be submitted to the approbation of the Lord Chancellor," be omitted.

Lord Althorp

had no objection to those words being struck out.

Amendment agreed to.

Mr. J. L. Knight

suggested the addition of words for the purpose of preventing any Member of Parliament acting as Barrister under the appointment of the Judges. He would move, as an Amendment, "That no Member of Parliament shall be appointed such Barrister within the intention of the aforesaid Act."

Lord Althorp

had no objection to the Amendment, though he thought that the case against which this Amendment was intended to guard was very little likely to occur.

Amendment agreed to.

Mr. Baring

proposed an Amendment to the Clause, to the effect of preventing Barristers concerned in revising the lists of voters at elections, from appearing subsequently as advocates before Committees of the House of Commons, when the validity of the elections in which they had been employed came to be determined.

Mr. Burge

could not consent to the Amendment, as it created a prohibition which was wholly unnecessary, and, in so doing, conveyed a reflection on the profession. No Barrister engaged at an election would think of appearing as Counsel before an Election Committee.

Mr. Knight

observed, that if any Barrister was so forgetful of delicacy, and of what he owed to himself, as to practise before an Election Committee, in a case in which he had formerly sat in a judicial character, it would be in the power of the House, or the Committee by refusing to hear him, to evince their sense of the impropriety. No such thing, however, was known in the profession. Some of the Judges in the Ecclesiastical Courts practised in the higher Courts, into which appeals came, but they uniformly declined holding briefs in a cause which had come before them in their judicial character. He might refer particularly to the case of his hon. and learned friend, the Chancellor of the Diocese of London, (Dr. Lushington) who presided in the Consistory Court, and who practised with so much credit to himself, and advantage to the public in the Prerogative Court, to which appeals were frequently brought from the Consistory Court. The prohibition was unnecessary, and he should, therefore, vote against the Amendment.

Mr. Hunt

said, they had prohibited Members of Parliament from acting as Barristers, and he did not see why Barristers should not be prohibited from acting both as Judges and Advocates. The adoption of the Amendment would make the clause more complete. It was said, a Committee might refuse to hear a Barrister, who had acted as a Judge; but how were they to know it, and if they did, it would be a very unpleasant position to place them in.

Mr. John Campbell

said, it was a rule of the Civil Law—a rule adopted univer- sally by all the nations to which that law was known—that an individual sitting judicially in a cause should not appear as an Advocate, upon an appeal made in that cause to a higher Court. This rule of the Civil Law was adopted in practice by the profession in this country, and it would be a reproach to the lawyers of England to enforce by an Act of Parliament what was already the universal practice.

Mr. Baring

said, that as it appeared to be the universal feeling of the gentlemen of the legal profession, that it would be unprofessional for any Barrister, having acted as a Barrister in settling the lists, to appear as an Advocate before an Election Committee, he would withdraw his Amendment, hoping, from what had been stated, that the evil he was anxious to guard against, would not occur.

Amendment withdrawn, and the clause as amended ordered to stand part of the Bill.

The 41st Clause agreed to.

On the 42nd Clause being proposed.

Mr. Goulburn

said, he observed the lists of the voters was to be put upon, or near the Church door. He did not understand that expression.

Lord Althorp:

The Church door may not be of size enough to hold the lists of large parishes, therefore it was necessary to provide another place for their exhibition.

Lord Sandon

thought this method of publication would not be sufficiently effective for large parishes, where the number of votes was 15 or 20,000; how would it be possible for any one to examine such a list of names?

Mr. Goulburn

said, it would be utterly impossible for an effective examination to take place, among such a multitude of names as would be exhibited in the metropolitan districts.

Lord Althorp

said, the parochial authorities for their own convenience would take care to have the list so made out, as to be accessible to all parties.

The Clause was then agreed to.

The 43rd and 44th Clauses were agreed to.

The 45th Clause, which enacts that all persons whose names are omitted in the list of voters for cities or boroughs, shall be at liberty to give notice in writing to the overseers or the town clerk, as the case may be, of their intention to claim to have their names inserted—and which gives to all persons who shall have been inserted in such lists, a right to object to any other person as not being entitled to have his name retained in such list, and which compels the overseers or town clerks to publish lists of the claimants and the persons objected to; and to affix copies of such lists on the doors of all the churches within their parish or township, or on the doors of their town hall, and to furnish a copy of each of such lists to any person requiring the same for the fee of one shilling was then put by the chairman.

Mr. Goulburn

objected to this clause on the ground that it was quite impracticable to carry it into execution. The Church doors could not carry all the lists which this clause ordered the overseer to make out. Besides, it was too much to compel the overseer to furnish a copy of such lists for so paltry a fee as one shilling. He was fully persuaded, that, in large towns the Act could not be carried into execution.

Sir Charles Wetherell

also thought, that it would be impossible to carry this clause into operation. It would require the overseer to have a complete establishment of secretaries and bill-stickers, in order to make out and post up these lists. The clause, too, was one of the longest which he had ever seen in an Act of Parliament. It was so long, that it had actually put the Chairman out of breath in reading it, and it almost required a pair of horses to draw hon. Members through it.

Lord John Russell

said, that since the former Bill had been rejected, he had had some communication with the Overseers of several populous places; and he was given to understand that, with the amendments now introduced into the Bill, the Overseers were of opinion, that, not only would the time, but also the remuneration afforded them for drawing out those lists, be amply sufficient.

Clause agreed to.

The 46th Clause, which makes provision for making out a list of the liverymen of London, and for holding the elections at Guildhall, was then put by the Chairman.

Mr. Hunt

said, it was required by the Clause that the list of the Lively men should be fixed up at the Royal Exchange on two Sundays; but, it so happened that that building was always shut upon those days.

Mr. Alderman Venables

observed, there could be no doubt that the list could be fixed up so as to be perfectly seen all the week.

Mr. Alderman Waithman

The lists of the several Companies are always kept made up correctly, so that no mistake could arise.

Clause agreed to.

The Chairman then put the 47th Clause, empowering Judges of Assize to appoint barristers to revise the lists of borough voters.

Mr. Alderman Venables

moved an amendment to the clause, that the Barristers to be appointed for the purposes of the Bill in the city of London should be selected from the Common Pleaders of the city.

The clause, with the amendment, agreed to, as were the 48th, the 49th, and the 50th clauses.

The Chairman

then put the 51st Clause, by which authority is given to the Banisters to summon witnesses to give evidence touching the matter pending before them; and in case of refusal by the witnesses to be sworn to give evidence, to commit such party refusing to the House of Correction for seven days.

Sir Charles Wetherell

said, he wholly objected to this power being given to any learned Reformer whatever.

The Attorney-General

said, that such power was reserved to all Courts, and that of the Barristers under this Bill ought not to be deprived of the power enjoyed by other judges.

Sir Charles Wetherell

Would never consent to any such power being given to such a mummery of a Judge, who, he supposed, must have his train-bearer, and other officers.

Mr. Hunt

concurred with what had fallen from the hon. and learned Gentleman. He was glad to find among the present Government a Minister (the Secretary at War) who knew what it was to be sent to gaol; and he hoped the right hon. Baronet would be the first to oppose this portion of the clause.

Lord Althorp

There must be some means to compel witnesses to answer questions; but, as the punishment stated in the clause was objected to, he was willing to change the imprisonment to a small fine.

Mr. Goulburn

thought that some difficulty would arise from the wording of the clause, for, though the Barrister was empowered to issue his warrant for the attendance of a witness, there was no provision in the clause as to any person by whom the warrant was to be executed; so that it was only when the witness appeared before the Barrister that he was liable to punishment, for, if he chose to stay away, he suffered no liability.

Sir Robert Peel

conceived another difficulty presented itself, for no party was bound to attend as a witness until his reasonable travelling expenses had been tendered to him; and who, under the provisions of the Bill, he would ask, was the party to make the tender? If there was no such party, how could the witness be bound to attend? He admitted that it might be said that every witness might be presumed to reside within the borough or town within which the vote was to be given; but supposing him to be in London, or elsewhere, who was the party interested to make the tender of his expenses?

Lord Althorp

had no hesitation, after the suggestions which had been thrown out, to postpone the consideration of the clause.

Sir Robert Peel

said, that the manner in which' his suggestions had been met, afforded a great encouragement to hon. Members on his side of the House to offer for consideration amendments to the Bill, in the same spirit in which they were received.

The Attorney General

assured the right hon. Baronet that every reasonable suggestion had, and ever would have, the attentive consideration of the Government.

The Clause postponed.

The 52nd Clause, authorising the appointment of additional Barristers, in case of need, was agreed to without amendment.

On the 53rd Clause, enacting that lists of voters for counties shall be transmitted to the Clerks of the Peace, and that lists of voters for cities or boroughs shall be kept by the returning officers

Sir Robert Peel

said, there was a point in this clause to which he begged to call attention, as there was no provision] in it for correcting the list, should there be an error in the entry of the names, except taking the case before a Committee of the House of Commons. The Act required distinctly, that the form of the list and notice applicable to cities and boroughs, should be drawn according to the schedule of the Act, and that the Christian name of the voter should be copied into a book from the list. Suppose a person had two Christian names, and he, by mistake, was entered by only one; when he came to the poll he might be rejected, and the only tribunal before which such a mistake could be corrected would be a Committee of the House of Commons. There was a case to be met with in Rogers's work on elections, where a man's name was entered differently; in one case it was "Charles" at full length, and in the other simply "Chas." This led to a dispute as to the identity of the vote. There being no remedy provided for correcting a trivial error of this description, the omission might be an encouragement to litigation in elections. He, therefore, thought there should be some provision affording the means of correcting palpable and unimportant errors, by some less tedious and expensive machinery than an Election Committee. The evil arising from litigation, in consequence of mistakes of this kind, might be clearly exemplified by the Bedford case, and the law on this subject could not be too clear. In the case he alluded to, 277 voters were objected to out of 500, on account of their assessments to the land-tax being informal. He wished to know whether there was to be no appeal but to a Committee of the House of Commons, or whether any mode was to be adopted for correcting mistakes other than that of coming before an Election Committee. It would be necessary that a proper party for determining this point should be appointed; whereby, on coming to the poll, a voter should have an opportunity of rectifying any error that might have crept into the list, for, unless this was done, an opportunity would be given for making frivolous objections. As the Bill at present stood, the occupation of successive premises would entitle a man to vote. Supposing a man had occupied three or four different premises, it would be necessary, in that case, that he should state his qualification, and if, by accident, his Christian name should be entered differently in the lists, he would, without some such remedy, be liable to have his vote objected to.

The Attorney General

did not see that any improvement could be made in the clause: he thought it was well calculated to effect the object proposed by it.

Lord John Russell

said, the general provision made by the clause was calculated to prevent mistakes. The Bedford case, alluded to by the right hon. Baronet, arose from some neglect with regard to the land-tax. The attempt to remedy minute evils by legislation very often created greater ones.

Sir Robert Peel

said, his sole object was to prevent, as much as possible, the having recourse to such an expensive remedy as a Committee of that House was known to be.

The Attorney General

agreed with the right hon. Baronet that every provision should be made to prevent candidates being compelled to have recourse to an Election Committee upon trifling occasions. He had no doubt the Sheriff would exercise a just discretion, and not receive factious or vexatious proposals.

Mr. John Campbell

said, if a man was called John Thomas in the list, and his name was Thomas John, such an error might be easily remedied by the Sheriff, as every mistake of that nature could be easily proved by the party affected.

Mr. Croker

The hon. and learned Gentleman had omitted to state, that the man must swear to his identity, and he had no doubt, from the increase of the number of voters, such a case would be of frequent occurrence. Some provision should therefore be made to meet the objection, and thereby prevent a man, on coming to the poll, being told there was no remedy for the mistake but a Committee of the House of Commons.

Sir Robert Peel

hoped the noble Lord would make a slight alteration in the clause, to meet the objection. Some such provision as a man coming forward and declaring, "I am A. B., but my name is entered on the List as C. D.," would be likely to prevent appeals to the House of Commons.

Clause agreed to.

The 54th Clause likewise agreed to.

On the 55th Clause, enacting that the expenses of Overseers shall be paid out of the Poor-rate, being put,

Sir Robert Peel

observed, that this was an enactment of considerable importance, as it went to provide that the expenses of the Overseers should be paid out of the funds collected for the support of the poor. He thought this singularly objectionable, because it had the effect of saddling a very considerable expense on a rate which all classes of persons were desirous should be decreased instead of augmented. The very next clause appeared to be framed by persons aware of the objections which were sure to be entertained against accumulating charges upon this almost sacred fund for the relief of the poor; for it was by that clause provided, that the expenses incidental to the performance of their duty by the district Barristers should be borne out of the public purse. This objection, had, it would seem in this clause, struck the framers of the Bill, and he regretted the same caution had not been shewn in the clause before the Committee, There would not be wanting village Humes—he meant the allusion complimentarily—who would not fail to deprecate saddling the Poor-rates with the objects of that particular fund. The clause would be a great hardship on those scot and lot voters who would have to defray the expenses tinder a Bill which disfranchised them. He begged the Committee to be on their guard what they resolved upon with respect to this very singular and anomalous provision in the Bill, as their conduct would most certainly be scrutinized with more than ordinary strictness and severity by their constituents throughout the country, if they should be induced to encumber the fund for the relief of the poor with this heavy charge. He had another ground of objection. The boroughs were not, in all cases, to be co-extensive with the parishes, and therefore, in some cases, the parish would be burthened with an expense which would not properly belong to it.

Lord Althorp

did not, he confessed, see how the payment of these occasional expenses could be more safely or economically provided for than by leaving the defraying of the charges incurred by the Constables of the districts to the local fund of the places interested. It was certainly better than permitting it to be claimed out of the Exchequer, because it was evident that office could not have the same control over the Constable in distant parts of the kingdom as the local authorities, or the private persons interested in keeping down those expenses. There was also a facility in this mode of collecting the rate, as it might be called, which was in itself a strong-reason for preferring obtaining it when necessary, at the same time with the Poor-rate, rather than subjecting the different places to the charge of a separate collection distinct from that of the Poor-rate. Although it was undoubtedly the case, that some of the old boroughs were not co-extensive with the parishes, yet the mode adopted in the clause was the best and most economical for all classes of boroughs generally.

Mr. Goulburn

felt a strong objection to any enactment that should throw a charge not necessarily connected with the relief of the poor upon the Poor-rate. If Parliament went on in this way saddling one expense after another upon the Poor-rates, the character of that fund would fall considerably in the opinion of the public, who would not fail to complain that its sanction was attempted to be directed to subjects of import far different from those comprised within its original institution. They had a precedent in point with regard to the Grand Jury Fund in Ireland. Many hon. Members knew how convenient that had been found on several occasions. Charges of an indefinite nature might in future add annually to the burthen of the Poor-rates, and which would not come with the other items of public expenditure before the House.

Mr. Hume

thought that the voters themselves should defray the small expenses incidental to the registry of their votes. As the suffrage was limited to particular persons, the general rate-payers of the parish ought, not to be called upon to bear any part of their expenses.

Colonel Wood

said, there was another charge created by the Bill which parishes and county rate-payers would greatly object to when they came to understand it; he meant the charge for the returning officers of boroughs being imposed upon the counties. He did not understand why this should be the ease: the whole of the effect, however, of the clause would be, that parishioners would first have to pay towards the Lists out of the Poor-rates, while the counties would have to contribute to the borough expenses; and all parties who paid rates, although many of them were not to receive votes would still have to contribute to both these funds.

Sir Robert Peel

said, every measure should be devised to contract parochial expenditure, instead of adding to it. The amount annually collected was already enormous, and there was no limit to its increase. While all other public burthens were under the control of that House, this was exempt from their management, and therefore they ought to be very careful how they added any additional charges to it, particularly if they at all partook of an undefined character. The Overseer was an officer acting generally gratuitously, and was often a person wholly incompetent to attend to complicated accounts. He must, therefore, incur some expense in getting them completed; probably the Attorney and Vestry Clerk would assist him; and, as such parties jointly had frequently great control over the parish funds, the chances were, that in many instances large and unnecessary expenses would be incurred. The charges, therefore, ought to be defined, and their amount subjected to some other supervision than that of the parochial authorities. As the candidate at an election had to defray a portion of the expense, it was most desirable that, upon the principle of the Scotch Bill, the voters should be also made to pay a small sum each towards defraying those expenses. It struck him that that would be a better plan than the one which threw those expenses on the Poor-rates generally, for there was nothing that Parliament should more carefully attend to than the limiting and controlling parochial expenditure.

Mr. Benett

was convinced, that if the County-rates were increased by the operation of this clause, there would be great objections raised to the clause. He saw no objection to each voter being called upon to pay a shilling on being registered, and another for the copy of the List. These payments, he thought, would be sufficient to cover every expense to be incurred by the Overseers, and would therefore effectually protect the County-rates and Poor-rates.

Lord Althorp

had no objection to postpone the consideration of this clause, if such was the desire of the Committee.

Clause postponed.

The House resumed. The Committee to sit again the next day.